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22 1 







"v. -V 







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or THB 

Sb^ttmt 42r0tirt 





Vt icirent civrs, quod jm de mtaqve re gviique dkhtnu eiHt ammM 
pramunircnt Dm. 1, 2. 51. 10. ' ^' 

Let the Juilget produce the reatant of their senteHce opeHhf ; to that vhtt i$ 
Jree tn power may yet be limited by regard to Jante OHd reputatum.—Loti 
liACON, de tugmtntis •cieaUMiim. 

Above all, let the Judgmentg^of the Supreme md Principal Courts be dtHgentla 
and faUhfuUy recorded ; espedally in weighty ,aH$e$, amd partieularh, *uel 
u» are doubtful or attend^ unth difficulty or novelty ; for Judgments or* 
the oacYoM oft/te Laut, as Laws are the anchors of iitates,^h9id Bacom 
ua augmsotis ■cieutiMrum. -•w«». 

AND BALDWIN tc C.nxnnr.K inwnnw ' 








or THI 


*»♦ »■ 


Ph». Pag.. 

tj ;(■ 

TTwooD V. Rough. . 128 

Attwood V. Lilly 115 

Acadia, Sloop (case of) 188 
Andrews v. Andrews . . 205 
Appraisers v. iM orris . . 306 
Appraisers (memorial 0^359 

Avery v. Kent 382 

Atalania, Brig (case of) 411 


Brine v. Meehan . . 1 & 31 
Brine, Meehan v. . . & 8 
Broom v. 'Williams 14 & 19 
Bristowe y. Butler & 

Tudridge .... 17 & 20 
Butler & Todridec. 

BriBtow« V. . . "l7 & 20 

Bickley, Cockseley 
Barter v. Johnstr 
Baine v. Nichohb . 
Brooking v. Little . 
Brooking v. Byrne 
[ Brophy y. Attwood 

V. 25 

.. 39 
... 51 
... If8 

.. 150 

(—.wp-v •• *»»»""WU , , . , 161 
Bame & Co. v. Chambers 173 
Baine & Co. v. Cos- 

na*"*! 210 

Benning (trustees) v. 

Brown & Co 224 

Bladestone v. Thomas 379 
Banks v. Elliott .... 396 
Brehaut ▼. Le Messurier 414 
Bowuug V. Harrison . . 467 
Beck V. Brig Kelton 

(ownera of) 
Broom y. Preston . . . . 491 

» » « « ir-a .-w 

-«»<^^PIir. -^..,^^. 


TAHLr. OF Tiin CAsr:s hepohted. 



Cdloman v. Executors 

of Kennedy 

Cocltsclty V. DickUy . . 
Cooncy V. Winter . . 
CiawfonJ V. Cunningham 
Crawford v. fluntera . . 
Cullen & Miller .. .. 
Cook's Jnsulvcncy 
Carter v. Uendell . . . . 
Case & Answer ., 

Carter v. Upliatn 

Church- wardens v. lien- 


Codner v: liaine & Co. 
Chancey v. Brooking . . 
Croake v; Brown 
Carter v. Wood ley ilti & 
Carter v. Whiteway 

Carter v. Boyd 

Crawford <Si Co.'s Insol- 
vency 100 & 

Carrol v. Carson .... 
Cowell Si M'Braire .... 
Cormick V. Oooling: ... 
Clift V. Iloldsworth 
Cowell V. M'Braire .... 
Cosnard v. Driscoll 
Custeen v. Daoson 






Dnnaromhc ^^ Co. v. 

Beck . . 539 

I)ea v: Winter .... 20 

f>allon v. Sininis 39 

Dal ton v. Altwood .... 01 
Dalton «J- Uyan's Insol- 
vency .^ C5 

Doolingi^- Kelly's Insol- 
vency iiO A 127 

Darnerill v, Dunsconib 01 

Dawe v. Faddy 137 

Deputy Shcriir v. I*ynn 107 
Du-isan v. 'I'riniingham 177 
Dunn v. Brooks .... 205 
Dooliy V. Burke . . . . 2if» 
Dugj-au v, Barter . . 230 



Pelany v. Cawley .... 243 
Doyle's Servants (cane 

f>0 292 & 294 

Dearing V. Harvey 406 

Danson v. Cawley .... 433 
Pawe v. Broom ij- others i38 


Enilcrcolt's Intestacy . . 54 

Evans V. Bulley 375 

Eljsary v. Ilcrnaman . . 409 
Evans v. Con-don . . . . 428 


Freeman v. Kenny . . 3 & 4 
Flahavan v. Gamble .. 41 

Fitzgerald V. Lilly yg 

Fitzherbert V. Gill .. .. 133 
Fitzgerald v. Dawe ..177 
Fry V. Ueigles . . . . 405 
roxs Insolvency .. 470 


Green v. Williams, 10 & 27 
Gulf, Newman v. . . . ^,, $t 

f t 






.. 54 
.. 375 
. . 409 
. . 428 

3& 4 
.. 41 

.. yy 

. 133 
. 177 
. 405 
. 470 




Godfrey's E«latc Of] 

J joss & others v. Kelly, ll>2 
i^oBH & others (petition 
^'O ^ 407 


• 1 1 


ilm'e k others, M'Phcr- 
son (trustees) V. 18 & 20 

Hnie v. Milledgc 40 

Hiibcas Corpus . . .... 54 

Henderson v. Brown JSc 

„.^® 90 

Hill V. Shea 1(1 

lliittonv. Kelly j.22 

Haley & Johnston ... |43 
Hoylcs V. Bland, 180,104,100 

Heath v. Kean -^la 

Hunt V. Lq Messurier . . 222 
Hunters v. Graham .... 240 
Hunt V. Hunt & others, 203 

Hayes v. Weave 290 

Uunters v. Hernaman . . 321 
Hunters v. Langdon 

(trustees oO 335 

g.^Py ^- Gaden 330 

Hilly ard, Jane (ort,er 

respecting). 368 

Hogan V. Stabb & Co. 383 
fliltditch's Will (order 

respecting^ 406 

Hogsett V. Boyd 470 


Kenny, Freeman v. 

Hitto & DiMo 

Kennedy's lilxecutors, 

Coiraan v. 
Keef V. Shnnnnn . . ' 
Kough's Insolvency . 
Kelson's Meinoriul . . . 

« • 


. a 





Innott V. Pendcrgrast . . 395 


Jennings v. Hunt .... 240 

Littler Dooling, 36,51,00 
L.ano a Insolvency .... oo 
Legg V. M'Carlhy . . 129 
Little's Trustees v. Dul- 
lahunty .. .. ,31 

Lynch V. Coughlan ..130 
Lahey v. Tree ..147 

LeGeytv. Miller .. 152 
Lady Hamilton, Brig 

(case oO . . . . 309 

Langley v. Darrell .... 379 
Little V. Broom, 307 & 392 
Leigh's Estate (order 

relating to) ., 405 

Meehan v. Brine . . 6 & 8 
JJeohan, Brine v. . . 1 & 31 
M'Pherson (trustees v. 

Huie & others . . 18 & 20 
Mead's Estate _. . 24 
Morey, Square V. ..." 29 
M'Lea V. Kennie .... 31 
Malzard t. Huie ..... 47 

Meany v. Pynn 50 

-urpny r. Rough .... 93 




Meagher v. llant & Co. 

157 & 100 


Unperson v. Quintan .... 257 
Hex V. Lilly 428 

M , _,, '"• ** '"" "t?x V. i,niy 420 

ter r '^'''"""'' ,• ■ ■"", "'••''''y *• "wkett iia 

IWomss, Jane, property, 105 ' 

Morning Star. Schooner 

(case of) , 270 

M'Grath'BWiil '.*.'.; 273 
Margaret & Isabella, 

Schooner (case of) 540 

Newman v. Goff 32 

Newman v. Trcmlelfs 
Trustees 130 

Newman r. Meaglier . . 207 

Newman y. Church- 
wardens 350 

Newport v. Purcell . . 427 


Parkin v. fiennell 

.. 204 

Square v. Morey .... 20 & 13f) 
Shaw V. Le Messurier 09 
Stewart v. Hutchings 00& 75 
Smitliers v. Williams .... 04 

Stuart V. Walsh oa 

Simms v. Hoddern .... IIQ 

Stabb V. Stabb 200 

Skinner v. Tarrahan .... 374 
Stuck less's Estate (order 
respecting) 41Q 


Terrington, Hyan V 29 

I rimmgham v. Brine . . 179 
Trimingbam v. Gaskin 274 

Parsons v. Sheppard . . 464 Thistle's Estate ('memo- 
Page V. Carter . . . . 474/ "«»* & order 



Ryan ▼. Terrington to 

Rennie, M*JLea v 31 

Roberts v. Simpson .... 76 
Robertson & Mortimer's 

Insolvency 70 

Regula Generalis .... 86 
Ryan's Petition .... 113 

Ryan v. Ryan i64 

Rex ▼. Row 144 

gex V. Kough 105 

Ryan ▼. Thomas 203 

Rourke ▼. Baine & Co. 237 
Rowe V. Street 240 


Williams, Green v. Jo * 27 
wiiiiamR. Broom v. 14 * 10 
Winter. Dea r. ... 28 

Winter V. Winter ..5^**67 

Walsh V. Carter 05 

Winter's Insolvency .7 SQ 
Williams V. Williams . . 120 
Waller (trustees oQ v. 

Broom 504 

Winsor V. S(abb .^ , . 543 


Young V. Attwood 262 

I onge V. Blaikie 310 


.... 257 

.... 420 






From the Year 1817, to the Year 1822. 

John h Robert Brine, appellanii, 


Michael Mbeh an, respondent. 

nTih}% ^^ *° iPP®''^ from the judgment 
«n S Surrogate Court of St. John's, given 

Cf isVl'^^Jj"? ''It' t«'««overtheT«m 
ot ±53 16*. Qd. from the appellants, as in- 

therraS^?r "'^^ ^^' of^e^chang; which 
A»ec., 1813, drawn by fT. B. i?ou; per nro- 
curation of John BiU ^ Co., St.'johnT 
Newfoundland, 2d pec.,'i8l3.'ou/or^^ 
^ Co London, m favour of the appellants. 
The cause was submitted to a spiSal juir 
ij^hogave a verdict for the plai&ff vS 
the court ordered to be recorded, ^d^ve 

meni tbe defendants annpnio^ 4^ uui o® 


S8a Jn^, 1817. 

Xtw trial griBtMl 
bjr tba Supnns 
Ccttrt, ia • om* 
«h«r« judgatot 
had been girto in 
oil it bill of ti«* 
obaD|«, whieb bad 
b««n retained bj 
nontha aftar it 
cama iato bit poa- 
aaaiioB. [?<»(.] 




preme Court, on the ground that the plaintiff 

J &R ««.,«, I'n 1"°' "®^** *^"® diligence in sending the 
J.&R.Br,nb bill Lome for payment, and that he had 

M.r« M. ^^'^^^ oUaches, in locking the bill up for 

Mich. Mbbhan. several months. 

iSimm for the appellants, and Xi7/v for the 
respondent. On this dav the cause havin" 
been brought before the Chief Justice by ap! 
peal, the parties admitted that the bill in 
ciuestion was drawn on the 2d Dec, !813 
m favour of the appellants, who in the same 
month indorsed it and paid it to the respond- 
ent, who held it in his possession until the 
month of November, 1814, when he sent it 
home; but John »ill & Co, the drawees, 
having stopped payment, were declared 
bankrupts, on the 0th February, 1815. The 
bill, ot course, was protested, and John Hill 
1 ^«- were declared insolvent in JSeufound- 
land, 25th May, 1815. 

Simms, for the appellants, then proceed- 
ed to state, tha^ the plea of custom set up 
by tiie respondent respecting bills of ex- 
change had by no means been made out on 
the trial m the Surrogate Court, and urged 
the necessity of the holder of a bill of ex- 
change using due diligence in presenting it 
for acceptance ; citing, among others, the 
following authonties in support of the prin- 
ciple for which he contended,— Bacon'* 
Ahrtdgment, 4ith vol pp. G^^^25; Viner's 
MndgmaU, 4th vol p. 225 ; Sdwin's Nisi 
.Priiif, vol Ut, pp, 203—294; 2d Henry 
^laekstone,Q65 ; and Bayly onBills, o. 101. 
He also adverted to the l&th Geo, 3, c. 31, 
Mrhere bills of exchange are made a legal 

tender for payment of »«n;aji/*' «;<^M, which 
some persons had erroneoasly thought made 
them a legal tender in all cases. 

"^»%» foi" the respondent, contended 
that the evidence adduced ou the trial was 



c plaintiff 
iding; the 
: be had 
till up for 

Ijf for the 
e havings 
;e by ap- 
e bill in 
c, 1813, 
the same 
until the 
e sent it 
15. The 
'}lm Hill 

i set up 

of ex- 
3 out on 
] urged 
I of ex* 
inting it 
3rs, the 
le prin- 

»'* Nisi 

p. 101. 
\^ c. 31, 
a legal 
. which 

ul Was 



Mich. Mbbhait. 


abundantly sufficient to support the verdict 
which had been given ; and that this case 
rested entirely upon what was well known J. & R. Brinb 
to be the custom of Newfoundland, respecting 
the reciprocal rights and liabilities of the 
parties to a bill of exchange. He also re- 
ferred to the following decisions in th6 Su- 
preme Court, in which that custom seemed 
to have lieen recognized, viz, : Hugh Rmoe 
%,^Z;,^^*'*P^^&Co., and William 
-Oevil Tftonuu v. PAi7tp Leigh Sf Co, 

This being a case of the greatest import- 
ance to the trade of this country, the Chief 
Justice reserved it forfurth consideration; 
and, on a subsequent day, ic/ersed the judg- 
ment of the Court below, with permission to 
the parties to haxe anew triaU 



William Freeman, appellant, 

^ HIS was an action brought in th« Surro- 
gate Court, and submitted to a common iury 
to recover the sum oif £72 2*, lOrf. partly on 
a disputed account, and partly for damages 
^ustamed by the plaintiff in consequence of 
having been interrupted by the defendant in 
building upon a piece of ground which he 
bad taken from defendant. The jury re- 
turned a verdict against the defendant for 
f42, for which sum the Court below gave 
judgment in favour of the plaintiff, and de- 
fendant appealed. 

On this day. Lilly, for the appellant, and 
HtmiM, for the respondent, having been se- 
verally heard, the Chief Justice said : - 
' In this case a lease has been produced ; 

Augutt 4<A. 

A l«aM Mecuted 
under (be direction 
bill for tb« tpccifio 
performaoo* of an 
•(reemsnt for tuch 
lease, i* jirma fa- 
eie flvideuo* of ih« 
terma of inoh •« 
greemeot. [Pott. 
p. 4.] 

i 1 

i 1 


W ' 



and it is admitted it was made between the 

EoBcaxKK.... a question materially^rLT^^^^^ ^uTh 

W must not be taken as the original agree- 

so whether the respondent, having broken 
mIuTv^'u^ respecting the obstrSction of 
Molh, s lights, was not liable to the re-entry 
of the appellant, which is complained of aJ 
the gist of the action. 1 shall, therefore 
inTestigate this point morefully before 1 dX* 
Ji ver judgment in this case. 

Augutt 4th. 

"Wbere • leaie bii 
been executed un- 
der an order of 
Court, for Ibe tpe- 
cifio perfurmanca 
k>f an agreameDt, 
the party obtaining; 
•uch leaie ia not 
•■topped from pro- 
ving that condi« 
tioiiB and corenanta 
bare been introdu* 
end into il diflFereot 
from (boae which 
were contained ia 
the orixinui agree- 
menl. [ADtep.3.j 

William Freeman, appellant, 

Kobebt Kemnt, respondent. 

jS/«^'fh«^ri.-''?T8r «tood over«ince 31st 
iSmpnt '^^lu •''"**^® °°^ pronounced 
ipnl in i "" '^^^^^ *^""« --^s case ap. 
W^ ? ^'^^^f 0^° out of a misunderstand. 

in^der'Sr.'^ ^''''V' ^^'^^^ent for 
H^f ; i °^ ^ P*®*^® of ground for the resi- 
due of the term of a building lease. The 
facts appear to be as follow. * The appell! 
ant ,n Fedruanj, 1816. let thepiece offfi 
undera verbal agreement, to the respondent: 

tion that be was not to build upon it in such 
a manner as to obstruct the lights of jl/a„„V:« 
^olly. A memorandum in writing to such 
effect was made in the presence of the par- 

ex3!r'ir '^ ^ ''^^"•' ''»«''-»°>«nt bLg 
executed. Jt appears that the appellant 

bound down by certain restrictLs in the 
erections to be placed on the premises, find- 


tween the 
of Court, 
•r specific 
nt. Now 
her such 
ual agree- 
ts ; and if 
>g broken 
uction of 
• re-entry 
tied of as 
ore J de-> 


nee 31st 
tase ap- 
nent for 
ihe resi* 
5. The 

in such 
to such 
be par- 
It beiag 
0., and 

in the 
9, find* 

. . I .iWFOUNDLAND. | 

ing that the respondent was building a house iai7 

contrary to his own restrictions as a tenant ^ '-,_' 

of Hutton 4r Co. required him to take down Wm. Frbsmah 
80 much of his building as exceeded the t,. 

hf2.i^'° ''^*'!* ^/ ('he appellant) conceived Eobebt Kenn,. 
Jiimself restricted ; and upon being refused, 
caused It to be taken down himself. It does 
not appear that there was anything violent 
or forcible in these proceedings. But Kenn^ 
leeling himself aggrieved by the loss of time 
in completing his building, applied to the 
Surrogate Court for a compensation in da- 
mages for tlie injury he had sustained in the 
obstruction of his building. The cause was 
Heard before a jury, and a verdict for £42 
given for the plaintiff below. Jn the course 
of argument it turned out that Kenny had. 
after the obstruction, but before action 
brought, applied to this Court to compel 
J'reeman to perform his above-mentioned 
agreement, and execute a lease agreeably to 
the intention of the parties; and that an or- 
der of court had been made to such effect, 
and a lease (produced at the hearing) exe- 
cuted between the parties. It was contend- 
ed by the appellant that this lease was the 
true agreement, as it originally stood, be- 
tween the parties. But this was denied by 
the respondent; and it appeared to me if ' 
the respondent had applied for a specific 
performance of an agreement, and upon ob- 
taining an order to such effect, had actually 
been party to an instrument in writing, in 
pursuance of such order, that such instru- 
ment must, primd facie, be held to be proof 
of the terms of such agreement; and, there- 
lore, J directed the case to stand over until 
1 could consult the record of the proceed- 
ings which took place in this Court, in ano- 
ther branch of its jurisdiction. 1 find, how- 
ever, that the original memorandum^ as well 

L I 

I I' 



M the petition of the respondent in the case, 

Wh. FH.EMAN f^lf '?^"*"'" '"'^^ restrictions inthe build- 

"'"^^ ?&^./<> be erected by him. except that the 

jr«. \ }'^^^? ""^ ^««"*^^ ^olly were in nowise to 

*o..RxK..«.. be obstructed or injure^ and that the ordr 

^n^^f ' ^' *^?.u^^? ^P"* "^^'^^y directed i 
compliance with the memorandum, although 
the ap-eement, as extended afterwards, con- 
tains two covenants, against using the build- 
ing as a cooper's shop, and also for a pas- 
sage from JSray's house to Hollv's. The 
Jease, thereiore, does not appear to be a 
correct statement of the originafunderstand- 

J^L?« r^2 ^^^ E^"^^"* *»"* *<> have been 
modified afterwards. Now, as it docs not 
appear that any complaint has been made, 
or certainly none proved upon the record of 
the trial, that the lights of Mr. HolluZye 

™^/r"*'^* } ^" "°* ««• anythVg to 
warrant the re-entry and obstruction com- 

F mnf. « ^^ ^t *"««P<>ndent ; and therefore 
I must affirm the principle Of the action.-^ 
i He jury have assessed the damages ^t ^^42. 

Atyua 6th, 

A Special Jury 
find, that it has 
been the cuslona ia 
this country for 
parties lo retain 
bills of eichaoga 
for an indefinite 
period, without 
prejudice to the 
holder's right to 
hare recourse to 
tha indorsers and 
drawer, in the aveot 

Michael Mebhan, appellant, •"'^ 
John & Robert Brine, respondent?. 

J HIS action had before been tried in the 
Surrogate Court, where a verdict was given 
and judgment entered, for the piaintiff,-! 
Ihat judgment was, however, brought by 
appeal before the Supreme Court, and wal 
there reversed, with permission to the plain- 
er their roo-acoeptaoce by tha drairee. [St. tote p. 8, 


i the case, 
the build- 
>t that the 
nowise to 
the order 
directed h 
, although 
irds, coa- 
the build- 
for a pas- 
/s. The 
* to be a 
ave been 
do68 not 
en made, 
record of 
oily ha*ve 
rthing t6 
ion com- 
iction.— :• 
> ^t £42^ 


i in the 
8 given, 
ght by 
id was 
3 plain- 

ote p. 8. 


tiff to bring another action; as the Chief 
Justice was of opinion, that the point upon 
which the whole case rested, viz., the exist- 
ence of a valid custom in this island, that 
the holder of a bill of exchange might retain 
the same m lus possession for several months 
alter opportunities of transmitring it to Eng- 
iand for acceptance had been afforded him. 
without being guilty oi laches, had not been 
investigated with sufficient attention in the 
tormer trial. The cause was now submitted 
to a special jury, and a great number of 
witnesses were examined on both sides — 
in a charge of considerable length, the Chief 
Justice stated the general law merchant re- 
specting bills of exchange, as far as it was 
connected with the question at issue between 
these parties; and told the jury that such 
law must apply to this colony, as it did to 
an others, unless an uniform usage and cus- 
tom to the contrary should be found to have 
prevailed. He theft particularly explained 
the requisites to a legal custom, and charged 
the jury to find the following facts: 1st 
whether such a custom as the plaintiff con- 
tended for, did or did not exist; and 2d 
whether, supposing it to exist, the circum- 
stances of the present case were such as to 
entitle the plaintiff to claim the benefit of it. 
Should their finding on both these heads of 
inquiry be in favour of the plaintiff, his 
tionour recommended them to give him a 
verdict, subject to the future decision of the 
Court as to his right of action. 

•j he jury, after a short retirement, return- 
ed a special verdict, in strict conformity to 
these directions; [See it entered at length 
post. I 


Mich. Mbbhan 

J. & R. Brinc 

., mitmi49^,^^ 



Amfftttt nth, Patrick Coleman 

The Executors of J. Kennedy ami Others. 

mn'MihiidTundl; ^f 9}^}^ action Datve, for the defendants, 
the euiiom of ibit "^mitted that he had no ground of defence 
Ulaad, toaitayof Whatever; but he praved the Court that 

iMofZ «« "" J"^?™«^nt m'ght be given with a stay of ex- 
laii 01 me ,Mr. ecution until the fall of the year. 

Per CMiiam.— The plaintiff has made out 
Ills case, and therefore he must have judg- 
ment. If any stay of execution be sought, 
under the custom of the island, until the 
season is over, the defendants must special- 
ly show that they are within the description 
of fishermen encouraged by national policy, 
and allowed to prosecute their business to 
the end of the season. 

August ll/A. 

Th« custom for 
parsons in this Is> 
land io retain billa 
of axchanije in 
their possession for 
an indefinite p«- 
riod, without trans* 
mitting them to 
England for ac- 
ceptance (as found 
by a special jury 
oolbe 6th instant), 
austained by the 
judgment of the 
Supreme Court.-. 
[See ante p. I. tad 

Michael Meehan, appellant, 


John & Robert Brine, respondents. 

Jl HIS cause was tried before a special 
jury on the 5th instant, when the jury re- 
turned the following special verdict. The 
J^7„.fi"^ -l*»at a l>>" of exchange drawn by 
M^i//ia»i ^. Row by procuration of John 
HillSf Co,, on JoJm Bill ^ Co, London, 
payable to John &- Robert Brine, at 60 days' 
wght, dated 2d Dec, 1813, for the sura of 
*48 llrf., was by the defendants indorsed, 
and paid over to the plaintiff, in the month 
of December, 1813, and that the said bHI was 
held by the plaintiff until the month of Oc 
toberor November, 1814, and then remitted 


and Others. 

I of defence 
Court that 
stay of ax- 
is made out 
have judg- 
I be soughc, 
d, until the 
ust special- 
Dual policy, 
business to 


iH ,'t'jfri'Uf ' 

3 a special 
the jury re- 
dict. The 
B drawn by 
>n Qi John 
>. Londoiiy 
at 60 days* 
the sum of 
s indorsed, 
the month 
aid bill was 
nth of Oc- 
sn remitted 


J>y him for payment ; and on presentation 1017. 

i^ John init 6f' Co., London, on or about ^^i^P-v-^^;^, 
the month of I'^ebruary, 1815, was refused Mich. Mbbhah 
acceptance, duly protested and returned to v, 

t le Paintiff, who, without any delay after J. * R. Bwni. 
tlie return of the said bdl under protest, with 
charges thereon to the amount of £5 IS*. 7</., 
demanded payment of the defendant, who 
refused to pay the said bill and charges* 
on the ground of the plaintiff having comr 
mitted laches, in holding said bill in his pos- 
session from the month of December, 1813, to 
the month of October, or November, 1814. 
i he jury also find from the evidence, that it 
has been the custom in this country, for par- 
ties to hold bills of exchange in their pos* 
session for an undefined period, for their own 
convenience, without prejudice to the hold- 
ers, and that the present case comes within 
the said custom. Thev, therefore, pray the 

advice of the honourable court, giving their 

verdict for the plaintiff, provided it shall 

appear to the court that the plaintiff had 

cause of action. After hearing a short argu* 

inent by 6tm»t#, In which he reiterated the 

objections he had on a former occasion 

urged, to the validity of the custom which 

had been found by the jury, the Chief Jus* 

Uce delivered his judgment in Aearly these 

words i-*The jury have found a special cua* 

torn to prevail in this island, under which 

the holders of bills of exchange always look 

lo their drawers or endorsiars, lo long as 

such biUp continue in this country, without 

Miy impeachment on tae ground of laches, 

J He custom appears to have prevailed so 

long, and to have been so universally under* 

stood, as to enter hito and form an implied 

part of the contract between the parties to 

such bills.^ However, therefore, such a cub* 

«oni may be a depariwd from the common 





Mich. Mbbhan 


J.&R. Brinb. 

Auffuti 12tk. 

B, the debtor of 
>od A,und«riDtp« 
prnbeniion thai the 
<l«bl would oever 
bo paid, givM a 
oonsiderable tum 
of money ta a per* 
*oo who guarantee! 
<be paymeat of it, 
•nd bioda himself 
by a regular poli- 
cy of iDsuraoca to 
do flo. The debt 
is afterwards paid 
in another ooontry 
to the agent of A, 
l>y B, who subae* 
quenlly returns to 
Kewfoundlaod ; 
and, on the appli. 
oation of A, gives 
hita a promissory 
note for the sum 
A had paid, as the 
premium or the In- 
surance so effected 
by him — Held 
that there was a 
sufficient conside- 
ration to sualain 
this note. 


tW hoHpr?nr . T^ '/y injustice, towards 

hm undor ?L'-"' «^^^^'r«^. ^ho took 

S H?n» *. ^ '™P''^*^ understanding and 

laith. that the persons whose names were 

to them. 1 must, therefore, though, I own 

thfpiSr"' ^"^ ^■"'^™^»' - ^---^ 

John Green, appellant, 
Thomas Willums"& Co, respondents. 

Tiif^\^ a^^^ ^^^ »''g"ed vesterdav br 
it% for the appellant.%nd Aimm for' the 

Ee'd t' nn'^^ '''' Chief Justice^Jho 
aajerted to all the material points of it in 
the judgment which he now delivered l^'" 

august, 1814, the respondents sold to the 
^L^J "Jv ^ ^"""'^y '^''fi^*^' 'o be paid fort 

master that he was not to leave the wharf 
till the money was paid ; and was assured by 

night, however, the master privately cot un- 

the followrag morning, Mr. miliams it is 
m evidence, was in conversation wuh the 
appellant upon the subject of the fish" 

Ind a'^Sl'^f K^':f^*.\?'^«*'^««»™ o^2?0^ 
one /ay/or, for the balance. To this mode 


uld not no\^ 
:ree of hard-' 
ice, towards 
e, who took 
tanding and 
lames were 
main liable 
ugh, I own, 
in favour of 


terday, by 
ms for the 
istice, who 
nts of it in 
ered : — 
i month of 
old to the 
paid for in 
vessel left 
ngly deli- 
a balance 
! payment 
Led to the 
he wharf 
ssured by 
that very 
y got un- . 
fax. On 
ims, it is 
with the 
9h, wh«n 
of £100 
itly with 
is mode \ 





John Urbbn 

of adjustment Mr, Williams objected ; but 
said, if the appellant could get any respon^ 
sidle person to join him in a security, paya- 
ble at the fall of the year, he would take v. 
such security. The parties then separated, Thos. Williams 
and Green and his friend Taylor were never * ^°' 
seen nor beard of again by Williams, until 
more than a year after, when Green return^ 
ed to 8t John's. 

Now let us pause, and look at the present 
stage of the transaction. A stranger comes 
and purchases a valuable cargo of fish, and 
engages to pay for it before it is removed 
from the port. He pays part — leaves a con- 
siderable b^alance^and in the night, contra- 
ry to the express understanding and pro-> 
roise of the master, the fish is carried away 
to a distant country. The porcbasep comes 
the next morning and proposes a new and 
disadvantageous mode of part payment, and 
without even finding a responsible security, 

leaves the port himself; so that the vendor 

has lost botb his ^oods and his debtor, in 

breach of Ar/)re«« contract, and I do not 

think 1 ga too far in saying, othpnest and 

fair dealing, 
- The plaintiff, finding himself deceived, and 

believing there was an intention to defraud 

him of his money, wrote immediately to 

Halifax, to secure the payment there if pos-. 

sible ; and in the mean time effected an in- 
surance in this island, against the loss ta 

which he found himself exposed. The pre-, 

mium which he paid was the sum of £61 3*. 

lOd. It is said that this insurance grew out 

of a jest. It might be so; but merchants 

seldom throw away such large sums in mere 

jest. The insurance was formally entered 

into, and the premium regularly paid, it 

appears that the balance of the amount of 

fish was aft^**WaKrla nni#1 *n <'1^ ..-...^^ J A-> 




John Qriin 


fi« Tk. '^ ^ r '"'<"«» to re mburse liim 
* t'* fo« to wWchr'h"r K°' '"'"""« "«"'«" '"'« 

M tfte lubject of the preient action. Find, 
ing. however, that he had been t,^o hnit 
heafterwnhla Write, to the plainUff S 
TOW. Uie note, and ad»erti«.Vo Siit'eS^^, 

.^hI'"'!* °" .'^^ »"'<'■'. "Pon which t 
^dgment waa had for the plaintiff below 
and «, .ppeal intituled to thl. Court ' 

, It iaol^ected by the appellant fint th.< 
the iiunraaoe made by the reZndlt wm^ 

?. caiY^ nZ.T' "^ v-^y »» *' '^0 

T?~Ir«i, P* .'° ':*P»y «'•« premium, 
nnS.^° i""* ^"'PO"*. 1 »m not aware of an v 
positive lav agaUBt an insumnc. of tUaST 
scnption, and it certainly doe. n^Su 
within the principle of wV PoUofe.1 
^t ofX"i'"°P*'*y '• ""k*! aid h^^ 

^J^f^r*- ..^' ""y ™'e. «!>» part of tha 
?uT .^.^i^"'""' »°"^ the wont too dm,b«; 
M, to allow me to turn the reabondent ove» 

the pren.i"nm",5''L'rnt' maK tt^"* ' 

Mwer ?-™' '" *^' "«*«"« of an action 
kn«n?--. V''*™^*' snatained by the »o- 
SSS"' t^ ""»" »f «•« appillant mt 
p.rtoHningh» contract i and th'ilnofeS 

im ■ 'tf ' 


hen, being 
Dburse liim 
I. by being 
igainst the 
(1» he (the 
lote which 
n. Find' 
too hasty, 
itifff (lisa* 
hoi effect, 
which a 
iff belowi 

on the le* 
h thenote 

first, thai 
etit wata 
diy, thai 
t, canbot 

ire of any 
' thitt d^ 
not fall 
I the 6b- 
re an in>* 
i> but to 
i of the 
> doubto 
^t over 
rbm the 
jeefeton* • 
er hkck 

the re* 

of the 
i actioii 
the te- 
EUit nut 
ie itdelf 



is in the nature of a confession by the de- 
fendant of such damage being sustained by 
hio failure of performance. 

Suppose an action had been brought by 
the respondents against ihe appellant imme- 
diately on his arrival here, and before he 
^ive his note, for damages sustained by 
reason of his breach of contract. The re- 
spondents might have shown the expense 
they had sustained^ by being put to the ne- 
cessity of insuring ; and the jury might have 
assessed that sua* ftaaong the damages they 
might have given. Here, then, is no new 
right of action given by the note, but an 
origmal demand for damages, admitted in 
priHczple, by the fact of the appellant giving 
Jils note, and liquidated iu i^e amount, by the 
ium Agreed to be paid thereby. How can 
It be said, then, that there is no considera- 
tion 1 At all event*, here was a mtuai obli- 
gation, bnd a moral obligation will support 
an expl-ew promise, as has bieen already de- 

^' . ; T°^ judgnjent of the court b^low 
must ba a^oi^d, 

• Btttf»|r'» iViW Prtut, p, l4%-2 fiMt^ nep. 600. 

■oo^t«f.rnd to M M autbority lor tW p«*iiio« Wi« 

gjiw • MflitlTOt oimiidvtration tp topport a promiM, Mr. 
AeijeyJi bM iBicrtMl flM lollowiof wtefMl aote ia km Nisi 

'• >^n. btfor. ««ud«d to* on ihw ana tb»roUowiii« «••« : 

ll"!! •* V^ ^'!^ "' ''""^^ B"*"- N^ P' 147» ba, 
MnMiaiMW <hM Ml aupporl of »h«l bas baen suppow 

r.!Sj • ^ '^•'•' P"*"?** Intl dow« by Lord ^Mr- 

^ /fe«, w«., tb4t a lD*ra« oUigation ii a safficictat eonsuif rw 

» MNM for aa inpr^a pr«Mniae j btfioatHe, ki tbat case* oven- 

•tera ««re betd bonml by a nnra mibwquaiit p«oniiM to 

1 ?J*y '" fpoAtoary's biU. for bare tafcen of a ptaup«r » l.ut 
''Itiasv bfl obaariTAil. ihni ihi. »«. .^;.,.i>..i ^. .. ... 



John Cikeen 


Tiiofl. Williams 




Augutt 20/*, 

^Appellant re« 
quired lu producs 
« precedcal of ihe 
aumission, upon 
the bearini of an 
appeal, of w idcnco 
Qoi tendered at tlio 
trial of iho cause 
In the Court belong 
[See post.J . 


John Broom, appellant, 
_ and 

Jo N Williams, respondent. 

onde^nce .o show .ha. .h^e r'^X^^J^-^aUe 

vl^vl^*^^^ — ^' '^ contrary to the rules of 
den^ci'^'T^'? '^Jr*'^^' *« admit new 'e^f 
ceedbrri hif^"^ the records of former pro, 
ceedings before inferior courts. 

^' propoiilion. yet lird SStE-A ^"•""^ i"l*** *••■• 

"pear, that lb. oaae of Watmm^ T^Z ' x}^^^* 
" ported on ttrict legal princhk^ I'J "'^^ ''• "P' 
••docliioe ofmoralibliSn'of-ri "''"'"« '» »''• 
«• found in Ih. . i, cai; Tbil ""' *^ "•*'• «" •>• 
"bylaw to providi faM!; pLr oH T "" h ^' **""•"* 
•' benefit from iha aot «f #[ i • * ' «!""•''' <»«"»ed a 

" am., .ii fo'r work and ?» J '^'^^ /" «•""•' <Wei.7«<M 
" tiff tW the defendant; J* ♦h''-' P-''^™*"* bj the plain- 
" queet." *'*^'""'"''' •* their ipecui iotlaoce and le^ 

t: • 





he appcl- 
fith fresh 
fnt'8 titie 

B rules of 
lew evi- 
tner pro- 

to ptofidi* 
. ^9Hweli, 
htfe bten 

was oiled 
n< to nia* 
cniad thai 
, ibai tba 

mads all, 
t al'uding 
•n lakeo, 
id by lair 
. BanweU 
KO' relies 
r parmb, 
• Itap* 
' ba sup* 
'g io iba 
9 oao be 

; bound 
•rived a 
dad tbal 
y' of the. • 
*biob it 
itt, and 

) plain- 
lod ran 

If 8ucli a practif'e has ever prevailed liere, 1017. 

T sliculd be unwilling to op] ly n strong ^ _.i - , -■ ' 
hand to correct it in llie first instance; but John b.ioum 
I must be satisfied from the record books, v. 

that such practice has prevailed. Let this John Wi' hams. 
case, therefore, stand over for a day or two, 

It ••»ms, th»n, to b» tba (IpoMcc! opinion of Mr. Sthnpit 

a« wtll at of Mattri. iioianquet and Puller, that yVatioH 

V. Turntr it not an authoriiy ior tha doctrina which ii baa 

be»H thought to ealabliab ; but aa that dodribe baa been 

followed in other raara, and aa thara appeara Io ba aouia 

doubt aa to the extent to which it may ba carried. 1 aball 

enileavouf to aiamine it firti upon principle, and afler*. 

warda to auggeat ihe limilationa and reairicliona wilh 

which it muil be received and underaiood. 

If it ware practicable t» enforce the «»hole cUa^i of 

in(»r»l duliea by rulea of law, it would, undoubtedly, be 

nghi Io do so; and in such a state of society, moraldutiet 

and %«/ obligatiotu would become synonymous expres> 

aions. But reason, confirmed by frequent Aiperifuce, 

will demonalrate thai, in ihe present condilion of human 

nalure. such an attempt would not only fail in ihe exeou. 

tion. but also be productive, in tome inslanres, of very 

injurious consequencei : ami hence, aa Lord A'eiryon justly 

obMrved. legal obli; 4iions must, from ihfir nature, ba 

necessarily much more circum*rribed than moral duties. 

Thue. the performance of a promise is orrtai»|y a very 

sacred part of moral duly ; for he only can deserve Iha 

title of a good man, •' who, ihoush he promita to his loss, 

atill keeps his promise true." Yet were promiars deemed 

bin.linii in law, without regard to the ctmideration up<m 

which they were given, or the manner in which they wen 

made, it is probable that generous and imprudent persona 

would be induced, by the arlificea of designing and unprio- 
cipled eharaciers, to make promises, Ihe performauce of 
which might even involve them in ruin ; and that various 
JiraudM and petjuriet would be commilled in Ihe attempt 
to set up, and prove by false testimony, promises which, 
10 point of fact, bad never been made. To prevent these 
evils the civil law wisely refused to countenance a " nudum 
pactum ;" end from it we have, with equal propriety, 
adopted Ihe maxim, " ex nudo pacto non oritur 
ACTIO." But inasmuch as the evils Io which I allude, 
might, in the opinion of civilians, be also guarded against 
Ay mi obieremce of certain lolemnitiea in the mamer of 
making the agreement, or promise, as effectually (1) as by 

(1) Sea Mr. Fomblanoue's tdilioo of Iha •• Traatiia of 
Equity." 1 vol, p, 396, 






JoHM Broom 



bus VEstrruM.-' ♦rasEn-.f*'"'?''^"' solrmnn 
«nJ in the same nianno, V"^""' « cotisideraUon ; 
W o« account of .h«*^'',^T'''"P''«''^"^ 
The common "aw of Pr'li"^ "^ "'* w*/r««„«/ 
|« correspond pJeTisSv S.l^".! "^P'"^' '"^'•^fora 

C-rl., ,he Second, ,0 .Ty t ^ht" ' " *'" '*'«" ^^ 
•It»ins» fraud and ner u,v \ '**T "P «°"*''«' Carrier 

«bich would preK;j"Jv; El '^^^^^^^^ ■)"' ■'^'^^"^"^^ 
should. In cerrain 8pecifie7cr« k •*"'? '^'^"■*'^»''^*«'. 
to entitle Ihem to anrS ^H'. " ?t''';I *^ '^'^W 
•ng .o the oblee. 8n?l^lnten ion n 'h"'* "•" ^"""«' '<»»k- 
thertpassediaveml cor''^^^ ''i "!! */'""« "h*"'* wad 
*a». in the cases H.erei« T ^ ^'"t"^ <^^' "»*» •''• Act 
necessary w„Si';!;""T'»''*'*' "»«*^'e'l «^.-«n« 

t'on Is required to sustaiJ .n '^ '^"1 '*''''''' « ««nsidera- 
J7 and V^colrit'o" ZZ'nf'l'T '^ *"' ^' "" 
J fluenced l|.e legislature fo enact tl"e 20 C- "f?" "o '"•" 
VIZ., a rf«/rc to cApc;l frauihn»^ • • ^•'^' "• «• 3.— 
furnished wl,h a Xhv whtrS""'*' ''"J* ''««''• •»« «. 

'•a^a "MoRAtorUGAtloN" c^h'""^ ?"'*""•"« '•«'^ 
vimiem^ideration for a nroLj •»\f«cl'0ned a su/K. 
depend upon (be power hn« ' '* *"!' ""'•» *>bylaoffy fjr which S considerSr.'? °' '"r*"'"* "««•• 
•« deemed lo law t^r l/d f.Ln:I !"*" ^^ 
exoreasinn <• , .,? '■•"•Pensobly neoeMnnr. nm..* 

«ti,eiy co2 3 ,:„y;'„j*ft*"o«. Wn .7o„7 ; 

iJou|/i,e cops.a„tfy borne ?„^i;i Z^ T'"'?' »"« «"• 
o' .t must prodace^M.rple, n*Ti» ' "T""" *'»• »•• 
n.«de. Iac|„d„, .t^J^^ P^-JJ^J Which can lawfully fe. 

<he performance of It j buuo ..« A-^^'^i "^ ^"^^"^ '"' 
K»tio« i. ft gpod legal cohard!«? •* *"*'* » """•^ O^ll. 

W .p tba%o.U.7a aa JSiri^LT^^ 

f « language, «nd repugtiaql to fbft (rM 




'd to pro- 
•» antl fur- 
ized of, or 
■> the evi* 

>n underta- 
uideration ) 
a vofuntartf 
»» on Ibis 
e M'gii of 
her barrier 
fel^ verbal, 
Iv writing, 
^«s, look, 
"hich wad 
»t «lie Act 
I writing 

bft ftbun« 
the civil 
lie which 
. C. 3,— . 
'e we ar« 
ine hour 
a tuffi* 
>g (hoa« 
'f other, 
^ The 
>y tord 
hat tbig 
tbeusA . 

My r>« 

t'oM for 
\\ obH. 

fi (rM 



James Bristowe and John BRistotee, IBif. 

appellants, and '^ i^ffi „■ ruaiy 

Trustees of Butler & ToDRiooE's Estate, ^^^^^ jort 

respondents. ^^^ 

H. HIS Was an action to recoVef the sum 
of £723 e*. M. fdr principal and interest, [Sto post* p. 20j. 
due upon^a bottomree bond, on tha brig- 

spirit, of a Io0(r vtriQgpf cases ia tbfsbranoh. of English 

jurisprudence. We may safely couclude, therefore, tbal; 

Lord inans/2«/({ alluded to 4 moral obligation of a differ^ 

ekt chatdcter; and a nitle attention to the rule wbi6h hasj 

alreiady be«n suggested as eipaliU of meae^ring the auf^ 

nciency of all sorts or cotwidefatioBs will, 1 oonceivt^ 

enable us to ascertain, with great exactness and pieoision, 

tile limitations and restrictions with which bis Lordship's 

ex|f>ression must be received atid uirde^ttofbd. ]Sfow ther« 

are, we should remember, a multitude of transactions 

which, though they may not be obligatory in law, aire, 

notwithstanding, binding upon the conscience of an honest 

man } and at the asnie lime are: as capable of iumiskiag, 

from the notoriety ofthefactt which aeeomptmy them, that 
primd facie, or presumptive, e? idence of the truth of a 

promise-made in relation to them— which it is the main 
purpose of a consideration to supply— as if they were 
clothed with a completely legal character. . For example, 
a loan of money fairly advanced duting nfiioority, and a, 
debt harred by the statute of limitations, thobgh they canW 
nol^ he recprered at l4w, atill p|(M» thedebtor 
clear moral obl^atioi^ to pay them; and, moreover, th» 
circumstances connected with them furnish that presump- 
tive evidence in siipport of an after-promise by him to piy 
tbein, whieh bkust always^ i* wAtttiiig* in the «aik»of a 
naked promise to give n sdV of money without any conw 
sidfralipi»,»iknd thus the danger of frauds and per^^ries, 
which the obnsicferation is exclusively intended to obeak, 
is htfrdty gi^tktet in tti^sei' casek ihMn if tbe promise had 
bisen given to saitiisfy a suWibtinIg legal deitaand. In these, 
therefore, there is,»,nor>l.obligatiQB^. poasessingf^ in »'^ 
great degree^ if not enUnly, |be cfssential propertied of ,» 
legal obligation, as far. as it respects the consideration of 
a contract : and aceordlngry sucni moYal dftfigatioh may, 
wilbout thy deptkrtors from priaoipl*^ be peMHiied t& 
support « prcnaise^ NinaaioBs othai instiicesof lAOfili 
obl|gationq» faljinf under tbe mlet 1, have her^ endeavoured 
to expUm, might easil^ be prodvopd ; but t am enwiiling, 
ttf s^efl k' n6te'Whf<ib haii hIteadyMoWedtbalimili 
v^ihia'^bHlbiimatfldcriM'ioeoftliAei^ " • 



^^817^ ^('iih.helonpxig to Butler ^Todridffe The 
r^^ ?^?'^ ^^« *"ed in the Surrogate cfurt St 

hp?ni^ ^^^''^. J»<*g«ent for the defendants 
^The Tru,.ee, of Sff« ^nn "^ ¥?'"l' that judgment the plain- 
Butler & Tod, ^°!L appealed to the Supreme Court 
liDos's £.iai,. ^ <;n this day, ^-mwi*. for the appellants 

and ^room. for the respondents, were seve- 

on hp I J^ ^^^^^^^^^ couldnotclaim 
on the bottomree bond, and resting his chief 
objection upon the fact of the bonds hS 
been signed by ^i,^/,r alone, without^f 
authority from his partner TodridgeT ^ 
i^vLf ^^«'''.?''dered the matte? to stand 
oyer for consideration till pe^^t court-duy. 

Auguit 20/A. 

The agent to an 
insolvent estate 
transfers certain 
bills of exchanee, 
belonging to that 
estate, to some of 
the trustees, and 
states, by a memo* 
Tandum in writinif, 
that the transaction 
t<rasa/oan.— Held 
that the parties re« 
ceiving the bills 
'were, at all events, 
liable to restore the 
amount of them; 
since the transact 
tion was/rattrfufcn/ 
if Iheinieniion was 
to transfer the bills, 
not as a loan, but 

meat. *^ ^ 

The Trustees of Peter M'Pherson's 

Jistate, appellants, and 

HuiE, Reed & Co. respondents. 

*l.k !7 b^''^ ^^^ *^® circumstances of 
D em« r;''?'"*'^^'' brought before the Su- 
preme Court, upon appeal from the judgment 
of^the^Surrogate Court, the CAi^/S 

foP^'lhf'^'"'"^*'.**"?"''^^'* *^^«t the bills, 
Jor the amount of which this action is 

fett' Jt r' "'A^ ^»«°>^^* effects if 
^nnT t^""" ""^'^^ h^d been received 
by J?o«cAcr the agent for collecting those- 
effects ; and w«re handed over by Bouch^ 

mt^'Z'^'fl^^^^ by theplZ 

tended hv. I ''!^/^ ^^^^^^^' «« »« con- 
fW !k ^ ^^^ defendants. 1 must observe 
that the most favourable point of view in 
^hich I can regard i^ is asa W; for if it be 
otherwise, it is a fraudulpn* r«^'„«^;S"3 



Ige, The 
ourt, St. 
fi; when 
le plain- 

jre seve- 
n several 
lot claim 
bis chief 
3 having 
out any 

to stand 



nces of 
the Su- 

e bills, 
ion is 
rects of 
a con- 
I con- 
ew in 
if "be 


an insolvent estate, to give ah undue pre- 
jference, and that preference to a trustee. 
But I shall dispose of the case upon the on- 
ly evidence which has been brought before 
me. Jt is the evidence of Mr. Boucher him- 
sfelf, who, by a memorandum made at the 
time, and which is admitted to be in his hand, 
states that he " lent the bills to the defendant 
out of M'Phersotis estate." The transaction 
•Was entirely between Souchet and Hiiie (one 
of the defendants). The clerk knows no^ 
ihiiig of the nature of the transfer of th6 
mils, except that he received them from 
Huicy and was directed by Huie to place 
them to Boucher's credit. Now Boucher's 
memorandum, which was admitted by the 
surrogate, says they were **fo»«" from 
ilf*P*crw»'« estate. How shall 1, therefore^ 
without any evidence, except Bmcher% say 
they were not Imt ? Here was : also ,an ca^ 
press promisif; but i do not think itnecessa- 
ry to determine upon that ground. . . 1 reverse 
the judgment below. 

Against which judgment Mr; jR«rf gav* 
notice of an appeal to his Msgesty in Coun^ 
cil, but afterwards wthdrew the appeal. 



The Trustees of 
P. M'Pherson's 




John jBroom, appellant, 
■ John Williams, respondent 

August 23(f. 


HIS cause stpod over from the 20th, ^ lM8or'« . 

ilS' ^r? '^'' ^''^^^^ Chi^ Justice de. ^t^l^^^^ 
dared, that no new evidence could be al- himbyiheiemw 
lowed to be produced in this particular case, of •»»« 'ease, of ta^ 

as there was nothing to show, but what was *""* ^'^^^ **"® P'«" 
in the previous possession of the appellant : ^oun/tran"^ 

.. - . ceptance oflbei 

wgnee u bii tooanVso at to i»!i«T« the lessee frosa bis llabiljey Jc pay reaU 



> John Broom 
John Williams, 


and that it wasnot» consequently, necessary 
for him at present to decide, whether new 
evidence ought in any case to be received 
on the hearing of an appeal. 

His Honour then proceeded to observe, 
tbatiit AVas clear from 4he terms of the me- 
ittoratMjUm, that if the lessee intended to 
assign his iotereat, the lessor was to have a 
nght of taking bacjc the premises. But^ non 
emsm, heiemse he did not disapprove of 
the assign^e^ OF in jother words, did not ^i»h 
4o -avail iliowelf of fiiuch preference, that he 
accepted of such assignee as hi» tenant, vad 
Jherebjrreleased his lessee from bis fiml lia.- 

The letters are explained by the laait 
clause in^thc memorandum, to relate^erely 
|» the les^drf & • r ewrved preference* in c^e 
of assigsnment ; and > a» there wias no ! laot 
which, on thfi part of the respoadeiit, or his 
attorney, Aihoiinted ia an acceptance of the 
assignee as; Jiis, tenant, the appellant is 
bound for the rent in arrears ; and therefore 
the judgment below mUst be Confirmed. 

Au^t 23d 

James Bristowe and John BRisTowfi, 
appellants, and 
Trustees of Butler & Todridge's Estate, 

In this case tJieC^^JiMite^ delivered the 
toUowing judgment :— 

The Coort held, 
Ist, that a part' 
ovner«annot hy- 
pothecate tbevfasel beyond the extenVof his own bterest in her with. 
«.tao authority fiom th« other part-owner to do .oI-2?. thJt.hi ebn,Ie l^ 
a botton.reeboad.8Dolbo«ddtoprov««bat the money wai appHed tS linur* 

ilhTh'i T fr^?" *^^ '^^ «•'•* of .thrcbn«?r'« Papor^uTJe vewl! 
-4lh That theobligee's sMurity did not depend upon the performance orthe 
KSJc?.'C;' ^' purfosea^f which xL mon^ wa. rS™ sTh. Tha 

• bottomree bond is not such a transfer of property in a vessel as to reauira 

• comphaiioe wilb the piovialon, of the RegWy Aote. ^ 



;her new 

the roe- 
ad ed to 
have a 
But, noH 
>rove of 

4h|it be 
ant, and 

ia c^p 
DO! act 
I, Of hi3 
of ibe 
Uant h 



Ted the 

i«r, with^ 
•bligae in 
> the pur« 
er to ^e 
)e vefiiif I. 
oe o/,tlia 
Ih. That 



This was an action brought before the 
Surrogate Court, for the reco ery of the va- 
'lue of a vessel called the Faith, which had 
been seized by the defendants, as trustees of 
Xhe insolvent effects o( Butler 4- Todn^ge, 
end claimed by the plaintiffs in virtue of a 
bond of bottomree, conditioned for the pay- 
ment of the amount of Certain outfits and 
nec'ssaries furnished by tb^ plaintiffs upon 
ih6 securHy of thfs said veaael, All the 
fftcts aro admitted in argumeiit ; tod five 
4)»i99tion9 are miside for tbe detefminaiioja of 
Ibis Coort* 

V J pt.^TJiat the obligor* Btnrjf Butler i be- 
Wg ofi\Y part-^mner of the vessBl, bad not 
^e riglit to hypotbecftte Xhtivhfde, rym iu 
•. Sd-i-fTbat it ; does not i appear; that the 
JBdney ftlleged .to haveibeen advanced, wan 
^ctuftUy expended' for Impairs and necessa- 
ries of tbovefsel. if i >); 

^.— That the appellants can dnly recover 
to the extent of the money for which the 
v«S9el ^as sold. 

, 4tb^r«^That the «bUgieee had only a stpeoific 
isecurity upon the wBut qfnpflrtkular^pi/tige, 
which voyage toot beipg perforrmed, tbfey 
nmst resort to the^r personal Mcurity against 
the obligor, optheowneraof the vessel; and 

5tb»f^That where an assignment, or inte- 
rest in the nature of an assignment,: of any 
property in a British port is set up, there 
must be a compliance with the provisions of 
the Register Act. '^y? .-^ 

Ist^Upon the first point It does not 
•ppc^rthat Jffewy Btt^r, who executed the 
bottomree bopd, was authorized to do so for 
his partner; and the general question arises 
bow fkr one partner, being then at a distant 
point of the empire, has a right to hypotlre- 
cate the share of anotlier partner. 1 cannot 
find that this point ha« ever been expressiv 



Jamks Biid John 


BuTLSR <k Ton-* 

RiDQB'S Astute. 





decided ; and, therefore, I must endeavour 

JoHv and James ihev «r«Tn"?- "P?" ^t"^'^* principles a's 

Bristowk * "fja*^®. applicable to the point. A general 

. partner in trade, is considered as a partner 

The Executors of »» a ship; and as a part-owner in a shid can. 

r;,?f ^Jr ru?5' et ^t'Tl/^"?^^ part3,Tt 
^, Ji * ®"L K '*'*>"'' *^** ^^ cannot mort- 
. ^ It, which, m its consequences, may 
itmount to a sale, ' 

Indeed, it is said in Molloy, and other 
genera* wnters upon the subjeS'of bottom- 
ree, that ;»ar/.0M;»<.r, may pledge a shin ta 

thLtf "^Z -^^ H"'}' respective interest ^C 
hvnih *' /%?^*«i"«d» that the master mar 
hypothecate the whole of said ship in ras'e 

of necessity. The reason of this d'JstinctTon 
may not appear very evident. The power 
of the master grew out of various exigencies; 

iesl tn°r^ ''^ ''"^^ ^^y'*^^^' ^her* kc! 
wL? . • P^^ners was. impossible, and 
without which power of pled^ng the shin 
no confidence co«ld have Wn mised, an'd 
no assistance obtained ; and usage has coi2 
firmed a power which ^as at first assumed, 
and probably oMestionable. But instanc"* 
of part-owners being abroad, and necessita^ 

Iht ^rn?.,"?"'^ ''P'*"' o»- pledge of, me 
8liip,areofunfrequentoccHiT^nce, and <f^ 
not appear to have been sanctioned beyond 
the extent of their interests. ^ 

Jtis to be regretted that the master had 
not been made a party to the bond, as that 
circumstance would have cured every diffi- 
culty ; but as he was not, and the voyage ' 
npon which the bottomree was taken^^s 
i^nd%.rf1^T^ arfr.«/«re, commencing 
and intended^ to terminate at an English 

fsworThv'" /^' ''T\ ^"^ ^^^^« («°d it 

Tf fh! fi . "^^^^^ """f domiciled), than part 
of the first Yoyage, I feel myself bound to 



nciples as 
A general 
a partner 
a ship can- 
-owner, it 
mot mort- 
ices, may 

Emd othei* 
f bottom^ 
I ship, ta 
erestSf aU 
aster may 
) in case 
be power 
^her« kc- 
We, and 
the sWp, 
»ed, and 
has coi^- 
e of, the 
and d'4 

iter had 

as that 
ry diffi- 
n, was 
(and it 

an part 
and to 



shJi Sl*^^ ^"^"^ " only binding upon the 
S;~l!; j?.,i?f "fi°"^ P<!-t^tbe bond 



John and Jambs 
•vnrioo^o ♦!, " ""' "y^""" I'u'iu, me bond -Uhistowb 
expresses the sums advanced by the apDel- 
lants to have been ''for fitting, fumUhtns^ '^^' ^"<"""" «' 
and equipping the Bri^/ ^ "^ ^' Botler & Tod- 

in !!: ^**^.'T^°''«' >' were, as there is nothin- ""''*"'' ^'*""- 
m the evidence to prove the contrary, a feS 
and regular loan of the money for ti^e nur- 
pose expressed in the bond, (here is no nel 
cessity for the lenders to look to the aoDlt 
cauon of the money ; but they are entftC 
to their actiou against the owners, and to 
their hen (so far as it has been expressly and 
legal y given them) on the ship, without 
provtng that the monej, wa. proper y a^ 
The suggestions drawn from the account 

SX^Ir^^ '^' ^»^P^"«"*«' against S"y 
ButUr, are too remote to weigh against the 
positive evidence of the bottomree.Tmiih? 
be an account for other particulars than 

?he fa?t ' "^'^ ^' P'"'"^' if necessary/to be 
^ 3dly.— The appellants in this action, can 
only prevail to the extent of his obligo?" 
share of the vessel, or the proceeds thereof! 
♦j,o/h^* n^"""*^. conceive a doubt but 
^a^l t.T"^?*' ^"? ^ »'^" "P«»» the brig 
tf e f^i nf *K '"''""* of^«^/er'/interest. a! 
the time of the seizure by the assignees. The 
vessel was mortgaged by the insolvent Mith 
a condition that the mortgage was to bi vo 5 
on payment of the money advanced with- 
m so many days after the return of the brt 
from her destined voyage. / ^ 

ateh Vur^ J^'^'l?'^' ^°n»»nenced immedi.T 

of th;^Lif^*'*''^^"'?^'^ *'^^ ptrfonnance 
of the condition, and absolute after the term 

va purionnauce bad expired. A bottomre^ 




1517.' is ft lien-^and (he mon^y in this case was; 

^ ■- « "'■'" ' lent on the Anil and body of the brig, ^c, 

JoHM and Jambs which constitutes a bottomree. 

BaisTowft 5thly.— A bottomree bond is not such a 

Tbo Executors of t»*anfer of property in a vessel as to require 
DuTLBR & Too- any compli^ioe with the proviS'ions of the 
registry acts. It gives the creditors a righf> 
of action to be carried inti> effect by a court 
of jujftice, but not a right of properly ia the 
»hip itsdf. 

Upon tho whole, I reverse the judgment 
of tb« l!*liirrogate Court, and decree for the 
appellants to the extent of the proceeds^of 
BulWs interfert in tl>e vessel* b i^i 

KipGE's J^late« 

Avgmt 23i. 

Order to Execu* 
Ion to render an 
account of Iheir 
administration of 
their testator's es- 
tate lo the Probate 
Court by a giveo 


l-.rTKtrrrrr-Y-rrr'. — -r -: — ^- 

In thfettiatterbf GAfiREtt* Meade's Estate. 

t#N this day a memorial was presented to 
the Court, by James Murphy, for himself and 
his partner^ Mafthew Gleesoni ststiing that 
they had lately received certain powers from 
Ireland,, constituting them the attomie»of 
Messrs, Wyse (^ Quans, of "Waterford, Ire- 
land, who, it appears by the said statement, 
were at the faill ofthe year, 1816, considerable 
creditors of the late Garrett Meade, de- 
ceased ; and that tltey have this fear, sent a 
considerable qnaiitity of provisions, coun 
signed by them on adjoint account^ with the 
said Oareit Meade, vrho died m. the spring 
of the present year, leaving by bis last will 
ai»d testaaient, James Fdey and Moberi 
DaoKng his executors; and which propeifty,: 
consigned on. a joint accoant as aforessud;' 
has, at the request of the said executorsybeen- 
pai into; the bands of Mr. Jameu Clift, coih- 
miasion broker, who' has grveh security in: 
double the anoount thereof,,for. a> d<i>b per-> 

fomnanrtAO^ hia diiiv in IkIia «1]curtAanl. Af.a.^C'^. 



I case wasf 
hrig, Sfc.y 

lot such a 
;o require 
>ns of the 
re a right* 
ly a cdtirt 
Hy m thei 

ee for the 

s Estate?. • 

lented to 
ling that 
rers from 
)rd, Ire- 
!</e, de- 
ir, sent a 
US, con«i 
with the 
e spring 
last will 
fty coih- 
urity in; 




goods: apdalso a certain authority constitu* 
ting them the attornies oi Mary Meade, the 
widoy and relict of him the said late Gar^ 
reit Meade i^nil praying that the Court would 
c ii'ect that an the goods, books, accounts, 
debts, ana effects, belonging to the said 
i^ryse 4- Quans, may be handed over to 
JMpm, and also such property and papers 
5,^f9nging to the said Garrett Meade SiS the 
t.o^rt may tl^ink just and equitable, in order 
that a statement of the affairs of the said 
(warren Meade may be sent Home as sOon 
as possible. 

it is ordered by the Court, that the said 
James Foley and Robert Dooling h€, each of 
them furnished with a copy of the said me- 
morial, and that they do comply with the 
prayer contained therein— or, in default 
thereof, that they do prepare an account of 
their administration to the estate of the late 
(^arrett Meade, and appear in Court on or 
bpfore Thursday next, the 28th instant, to 
show cause why Jhey dp not conjply with 
tj^e prayer pontainied in the u^empriai. 

By order of the Court, . , fcj ! 



In the matte' 
of G. AIbadb'9 


; J{0HN CocKBSLEY, and Ann his Wife, ' 


ftgainst Saxmis BiqKLEY;. 

010 i)^ 

« 9 »'^?^terthe^up^ qifij!;l(]^i^ifl^^^ 
#?» *«d mferesi; of mppey Ient\to l^e^al4 

Augmt 25/A. 

The Court took 
time to consider 
what course ought 
to be adopted to- 
wards an absent 
defendant, who 
has property under 
the attachment ol 
Uie High Sheri£ 

t ' 





owner w^I !r L ^ f'efendant is one-half 

mSiSS^T' ^''^"^ "" representative 
theS!/-/,;;. f««^^a? not gone into; as 
over untfl r 7''?i'^.^''''^ ^' «h<'"'d stand 
ajieciing^ the attachment of nronertv hp 

- • 

i he J rustees of Peter M -Ph ebsos ; 
Estate, respondents. 

^.^ a.«. ;„ ^™™^);« Supreme Court, to His Majesty 

-Appetl to the 
Kiog in Coancil 
allowad in a caie 
M'here the judg- 
ment was for £i00 
(exclusive of 
costs), though the 

49 Geo. III. c. 27, 

*• 6, only gives sq 

appeal from judg- 
menti crceediny 
^Bt amount. 


"i'V/ ..JfT 


M. HIS caiise wad orlginaltv hrotiirht in ♦!, 
Surrogate Court on the 7th Wov^rs V?^ 
recover the sura o{£wn^t.'A '816, ta 

been lent by aVJJJ'^'oZZ.V^ ^.7nt 
OD the 16th dav ^f *h • i ^"^' ^°"rt, 

for the dae proswutiontf ih': T"!"'' 
by them. ''™^*<'""°'» «• the appeal given 

Js Tp'M^il^^ proceedings, the tms- 

ut being at 

ler CHarleSy 

is one-half 

ligh Sheriff 

)nc into ; as 
loold stand 
r directions 
operty be- 
* /lis island. 

s, and 


is Majesrjr 

gftt in the 
, 1816, to 
1 to have 
the agent 
lat Court, 
•y appeal 
the 20th 
I to the 
9n of the 
!al given 

he trus- 
teed the 
V on the 




ground that the law regulating app.«„ „au 
not been complied with, inasmuch as the 
judgment of the Court was for only £100 
the sum sued for ; and that the Act of the 

TJi P^?' ,V ' ''\ ^^'/ *' e^P'-essJy states, 
that It shall be lawful to appeal from the 
judgment m decree in the Supreme Court 
lor any sura exceeding £\Q0. 
^ In reply, it wAs urged that the appeal had 
been regularly made, and security given for 
the due prosecution thereof. 

His honour the Chief Justice sizi^.iii^ 
whenever there was a doubt as to the inten- 
tion of the legislature, the Court would al- 
ways fee! anxious to leaii to the side of the 
party appealing, so as to enable him to have 
the benefit of a Wgher tri»)ui»ak; mr^, ^here- 
lore, although the^ ^ct says aftoi^ jClOO, and 
the bond taken was only je200, the Court 
would not issue a writ of execution, but air 
low the appellants to go on with their ap- 
peal. But it was ordered by the Oaurt that 
in future, the costs of the suit should be add- 
ed to the aniount of the judgment; and. when 
an appeal is made therefrom. ,tM the bond 
for the^ proseqution of the appeal, shall be 

taken for double ^he ^Rojint of judgment 
and costs. . ^ j w© m «». 


In the cause between John Grees and 
Thomas Williams. 


JN this day. Messrs. Jams Macbraire 
(by his attorney. Peter Henderson), and 
^eorge Lilly, the sureties oUohn Green, in 
the appeal which he entered from the judg- 
!!lf ?K "i A^^ Surrogate Court. St. John's, 
on the ist July 1816. appeared in the Court 
agreeably to the order of the 2eth instant 


The Tru«teeg 0/ 


1; -A- i it 

i i 



The Suretiej of 
an absent prinei> 
pal in an appeal- 
bond, ordered to 
pay the amount of 
the judgment, in« 
teresi, lod costa. 




Inth,ca«.eb«, d?" 3^"^*^ ^'^ " «nd Without leavin- ail V 

f^ll -T^ ^^^^^^ire and Georse Lilly rin 
forthwith pay to the said plaitti^ in'«h« 

Submiasion of a 
suit to arbitration, 
at the instance of 
the parliea, under 
» riil© o{ Court, 

On this dAy, iht^^A^^^^V ' ' 

betw!«ii thtm * ^"u ?® inattett in ditowrtJ 

And, at the instance of the 8ai«i «dt.#;K. 
St was ordered that the awai^ «;i J ?* 
any two of thb arbit^to^JaSd K^ 
into Court, on or before the 6th dav of l^h 
tember next, should be made a i?ie nffl?" 

eaeh nf.t3 ?^ S«)»g-e Wis^r, their and 



John Gheii 
leaving any 
f» the SheHjjr 
5 judgment 
'at they, the 
je Lilly^ do 
Uiffs in the 
[I of £Q\ 6s, 
'5 per cent, 
he costs pi" 



led phrli^ 
aire, Wfej«e, 
liiiated air- 

d pdHi^s^ 
yof Sfep- 
ule of the 
and con- 
the said 
their and 


John Square & Co. against Matthet*^ 


^S this case involved property to a vnrv 
Irtrge amount, (£3.710 HI,. 0./.). and as all 

he Is and, the CAiefJust ice this day orderor^ 
that this cause do lie over, until 1st Muy 
next, m order to give time to the defendants 

fl^^^r'"' '" P^*"^^"' o"" by attorney, to de, 
fend the action. That in the nieamime aa 
inventory be made of all the goods, proper, 
ty, effects and credits of the defendants, 
and hesnmebe returned into court; and 
that the attachment be continued bn thdsaid 
if^^^'Ji?J'^'^^* ^^'^^*^' «•"' credits; and that 
«.hl«?.«; ^® ^?°'*^; **■* effects, be of a perish- 
able nature, that the same be sold, and the 

SC' '"'"'' ^' ''°""' '' ^^^^ 

rnifeii^u ^t^^ 1i^ *° *^« defendants, be 
collected by Mr. Matthew Morcv, jun., and 
security g,ven that the sums re/eived .hull 

rnn^f ^?i*?'"^'.*^ ^^'^^ ^^^ d«^^^*^ of tbe 
9u>pmt m this sqit, 

Avguit 30M. 

Ca«e postpbned 
on accoant of the 
absence of the de- 
feadants until the 
■pring, with a pro- 
viBJonal ordar tor 
the intermediate 
custody and dis- 
posal of the pro. 
perty belonging to 
the defendants iq 
tbU Gounlry. 

Mich, UyAii against J. Terrington, JElsq. 

kTebe? in ^"^^T^-^'u ^^ ordnance sf^i^e- 
adlt^\.Af ^'^^' '"^ *?'' ^^^'«' character, 
i^soTfhl^''' \q"^»t'ty of ^ood, for ihe 
A nnmhi ^,T'\'^^''^ *« ^vhich he belotigs. 
A number of tenders were, in consequence 
delivered at his office; and among IhertT an 
o^er by the plaintiff to furnish isl SrTs, 'a? 

bfvL Tf '7^' '"'i'".^"^' and accep ed 

tageous to Government. A deliv^rv of 1 iV 

both' "If'^'^^^^omact, Mas iSted dl 

. - - y — „,^. j[j^t„iiin„ wuw s>ougnt to 

September in. 

acting as such for 
the benefit of the 
publio. is not indi. 
vidually liable un- 
der any engage- 
ment he may bare 
contracted in his 
official obaraoter. 
[Upon this point. 
wae.l.T.R. 172; 
1. East, 136. 579. 
6. East, 148 ; 2. 
Taunt, 874; 16. 
Eaal, 384.J 



r: i 

Michael Ryan 


John Terrinq. 
TON, Uaq, 

- '•■> >,U 10 77tl ■ 

• ■ • <<(in vJjoljiuo 


.1617. recover by this action, first, the balance of 

i24, which he contended was still cue to 
him, on the quantity of wood he had actual- 
L^.t9^'' ^"^ secondly, the sum of 
S i\ "**'°^ ^^^ ^'*'"** °*' thirty-lhree cords 
which he insisted the defendant was bound 
to receive from him, over and above the quan- 
tify he had delivered, and which the defend- 
ant, as he alleged, had wrongfully refused to 
accept. The answer of the defendant to the 
action was, thathe had paid for all the wood 
he had actually received, and that he was not 
bojund to receive more than he bad done. 
1 he cause was submitted to a jury; and a 
number of witnesses were examined, the 
substance of whose testimony is contained 
m the foregoing statement of facts ; but a 
considerable difficulty arose in determining 
m what light the jury ought to view a re- 
ceipt produced by the defendant, corres, 
ponding m amount with the sum claimed by 
the plaintiff, as the balance due to him on 
the wood actually sold and delivered to the 
defendant, but differing in date, and some 
other circumstances, from the transactioa 
which formed the subject of the present dis- 

_ In his charge, the Chief Justice to]d 
the jury, that a public officer, acting osten- 
sibly m his official character, was not indivi- 
dually liable upon any engagement he may 
have entered into for the benefit of the pub- 
lic service; and that, therefore, that part of 
the present action which sought to charge • 
the defendant with a breach of contract iq 
not taking the wood to the full extent of the 
.' plamtiflTs tender, certainly could not be 

;i.r« , supported; but that if the Jury believed, 

f ic;t; *'*on» the evidence, that the defendant had 

received from the Commissary the full 
value of the wood delivered, and had not 

•■' -iIm:-! ■■]. 

. ■>i.'ifr<.o'i'.» i : 

; .- . .n.r.i 



liance of 
11 Cue to 
(J actual- 
sum of 
56 cords 
s bound 
^fused to 
It to the 
le wood 
was not 
d done. 
; and a 
ed, the 
; but a 
w a re- 
ojed by 
him on 
I to the 
int dis- 

e tola 
e may 
e pub- 
part of 
charge • 
act ii; 
of the 
ot be 
t had 
I full 
d not 





Jjaid over the whole sum to the pTairttiff, the ifitT 

defendant was acc<>uritable for the balance, _, , _ - 
ds money had and received by him to the Michael Ryan 
Use of the plamtiff ; and that the Jury ought «" 

accordingly to give a verdict for the part un- ^^^ "Terring- 
paid. With respect to the receipt, it un- ■'°^' ^'*- 
doubtedly was presumptive proof of pay- 
ment; but the Jury should take all the cir- 
cumstances connected with it into their con- 
sideration ; and it belonged to them exclu- 
sively to decide for what purpose it was 
given, and to what object it ought to be ap- 
phed.-r^Under this direction, the Jury soon 
returned a verdict for the plaintiff for £24. 

HuTTON, M'Lea & Co. against George 


Septembet 5t^, 

On this day. at the instance of Mr. Robert Ord«r for . p.,.. 
Huttqn, a rule was granted, ordering George to show cause why 
■fienme, master of the brig Betsey, to appear he refuse* to per^ 
m Court on Monday next, the 8th instant, 'o'^*'>«8'«einent; 
to show cause why he refuses to fulfil a cer- 
tain agreement, which Was entered into be- 
tween him and Mr. Button, for the charted 
of the said brig ou a foreign voyage; the 
minutes of the Said agreement having been 
taken down ill writing by Mr. WilliamKydd, 
and approved by him the said George Rennie, 

Mich. Meehan against iou^. ^f] . Brine. 

A Questioh hstving been raised as to the 
liability of the parties m this cause to the 
costs of the two actions that had been tried 
between them, the Chief Justice stated, that 
as one of the trials was o^p«#<»#i 

Wt^\f.«% .«W«^<kW« 

public grounds, for the satisfaction and 

September 5/A. 

Where a trirf 
had been granted, 

Sirincipaliy on pub- 
ic grounds, ibe 
costs were ordered 
to be borne equally 
by ths parties. 


• I 



^ i 


Mich* BIbbi^an 


J. & R. Srine. 

September 15/A. 

Under the pre> 
sent cirp^stwi" 
• lessee who cul- 
Uviiies w^#tf lond 
19 not to be pre- 
sumedl to li^va 
done so with the 
concurrence of the 
lessor, and for big 

.rVf. 'UiiAiRaitii'd 


guidance of inierchants on a very material 
poialt relating to bills of exchange, and, by, 
consequence^ aftecting the intei^ests qf iHu; 
whole commercial community, than, for the 
particular advantage of either of these par< 
ties, he thought th^t the costi^ of that tri^ji, 
ought to be borne equally between them;, 
but that the costs of the-pther trjfil ifiusi 
follow thejudgment^ Nvhich had been finally; 
givcQ agaiflisttie defendants. ; ;, . ^ 

'. 1: 

imun LiDsjoN Newman* appellant, *^'f 
. *ioi iuun and ■ ^■■■'.^^vvi s- h^mis\m 

John Goff, respondent, 

j| HE action out of which this appeal 
arose, was brought in the Surrogate Court, 
to recover a large sum of.mpney, for rent of 
property \yhich the defendant contended 
did not belong to the plaintiff. It was trivd 
by a jury, who found a general verdict,foi* 
the defendant ; and judgment was accprd- 
ly given in his favour by the Court below, 
/ifter hearing a few observations from both 
sides, the Cf^iief justice sai^ : — • 

l^hp right of rent, must depend on the 
t^0t to tlie properfu out of which that reni 
U-ip, \S9\IG ; afij! this brings the title |ntp 
question. It appears, that in 1780, old Sio- 
lomoii Goss conveyed to appellant "all the 
plantation then in his possession, situate at 
Torbay, or ^ the possession of any' other.'.' 
From the general words of this instrument, 
picj Gosss pQfJses.3lon. at thje time pf cqn- 

i^e inu«it loo^ £^.t ff,Q!^s'spQi?^esm^, ^o sj?f 
wli^t property tlje ""iipperKafit derivjed frp^ 

fpr the Jury on the former trial to datermiiie. 


ry .materia^: 
fe, and, by, 
ests pf iHc; 
ban. for the 
tiiese pac-: 
f that tri^][, 
feen. ibemi 

)een finally; 


lis appeal 

;ate Court, 

for. rent oi* 

t was trivd 
as accord- 
Hirt below, 
from both 

nd on the 
h that reni 
i title Into 
0, old^o^ 
t" all the 
situate at 
ny: Qther.V 
§ pf cqn- 

ray^d f^pjc^ 

Siffc^, tlreh, they hims siren ft g<m*r^: Ve^; 
diet m favour of the i^espowd^nt^ i toymt 
coriclude tliat they fdutjd thtft the pi'op«i'ty 
m dispute' was not i ti l^e possession bfe^bi* 
|t the ttme he- cohrey'^d' to the appe^liift'.^ 
i^it a //oiW 6fla»} had beeii liiade, t)ti., tlwt 
admitting tfiie' prbi^iet'ty iii- disjiute hot to 
ftavebeea tiak«n to,: or iis^a by, the<jW^hal 
g^ritor, ye* jf il: l,i^ been-dowi s(> by eftbtet 
the Ie89«e;pr his ^sjignfee;a« any period^ of 
Y!l W®' ** nraat be pti&^flriW'to hkir^h^tA 
rr^J^y^^^ ^^^ coiSsfeiA '6# th^' f ^<ij i afid 

land, thai I icaiiiibt bofd'tbe^Wdte^tft 

^t^^&^^^4'^'*'^^ f.^tfd ff d^p^ 

be affirmed. .vj;l, 


Thomas Cooney (^aiiwt John Winter. 

J. O recover the sum of £166 10*. 5rf. for 
monies belonging to the plaintiff, deposited 
by him with the defendant. It appeared, 
upon the trial, that some agreement had been 
m agitation between the parties, by which 
a real security was to be given by the de- 
fendant to the plaintiff, for the payment of 
an acknowledged debt. 

Jhe Chief Justice. 1 have little doubt 
but the agreement produced contains the 
terms proposed by the defendant ; but as 
there was no signing by the party sought to 
be bouna by the agreement, 1' think it is 


September 16/Ay 

in a esse where 
money had been 
deposited lor safe- 
keeping, and was 
not forlbcoming 
when payment was 






cases; 119 the supreme court, 

pretty strong presumptive evidence, that 
the plaintiff did not consjder the asrcemenj; 
complete, and, t}ierpiore, 1 pann9t hold tha^ 
it is a bar to the plaintiff's right to recoyer. 
The plaintiff is a labouring man, %yho apT 
pea^s to Ii4ye,deposjted lii^ money Avith tj^ie 
idieifendant for safe keeping, and, therefore, 
it^hoiAld hai;^ l^e^pi iorthcomiing yvhen h^ 
dem^d^d itp;'<; |f,,tlie (lefeadauA had it not 
^ef^ m 1)19 PPWf r, he h^4 Msed it,, it is to \i^ 
pc§sume<^, for ^)s ,9JiV^ h^e^, and ih^refojr^ 
miralioiW-^nc^Bipf inlierest. till paid is but rea^ 
^$^aU^, The ,pnes^^nptipnis, father, ^hatth^ 
pli^lHiflT, ipib^^ ajj a^rfiem^nt Uf re<?4^y^,intcr 
yfft»iVP9W><3|lf epfWy h^aye jjeen laroii^ht t^ 
reliniqiii^li^ suph rig|i|t tp principal ^d injlerest 
fotf r a Jljec^ri!ty. iby ^ whi<?n i^e\ .^as ■ merely t9 
rec^vft Jhs |frin9»»4 i W 4»'?^^t jptaji^^ot^ 
^a^d-withqntiBt^r^^,,, -..,., ■,,,,■ ., ,. 'V., .,1 \,:,;., 
, : Jli^g^^CiUt for ^l^epl^Ji^ijar, % j|h§ muh iJup 
a| the d(^t|B. of tbje. ,1^ ^iCjCOi|nt, ^d mte^re^ 
^hereon, ^ s^ ;cq^pi|t^d ^p tp t^^ jpjcpsjmt 

•^m-oJunk^H. .firvnW-VlUot ^'.S-iJi^-^U YIKOOI) k/,"OilT 

U ] 

r>"»woI!*»a<>i9inl •-> .^.^ ^.qj f^i^j. ),3 ,f^.y .«;[; .,-)-!>'. yi*') 


Sdv Ut:. 




'viden^e, that 
he agreemeni; 
DDpt hold thaj; 
;h% to recoYer. 
nan, %yho apT 
oney >vi(h tj^e 
ind, therefqre, 
«pg M^hen. b^ 
%nt haii it not 
1 it^ it is \o \»^ 
aad th^refojTf 
aid is, but r^ar 
If ther, ^hat th^ 
en projight t^ 

fas ^ merely t9 

■;'l, .;-,' ■•':-■■- 

^^h§ SPCMi i^up 
tjO tl^^ jpr^sjept 

/J y/ri-ojit 

)T^5i -. , hid 




Gjiahabi LiTtLE, appellant, 
^n^nU and Trustees of 

DooLiNG & Kellv, respondents* 




iiArJ ^l4' 

J. f1 IS is an appeal fi-dm the SurJ-dgatd 
VJurf, in an action brought by the plaintiff; 
who is the present appellant, to recovei" the 
sum of £500, being for one yearns rent Of a 
certain house leased by the appellant to 
nooiihff 4r ^elhj for the term of twenty-one 
vears. The last year's rent, ending on the 
flrst of IVovembe^ 1815, \Vas duly paid by 
the lessees; blit in the conrsieof the follow- 
ing yedr of the term they became insolvent, 
and the respondents were appointed tnis- 
tbes to their eff*ects, 

Th6 Chi6fJusticd. tt would ^eem that the 
trustees, upon entedng on their duty, tvere 
at first doubtful Whether they W6uld retain 
the insolvents' interest in the lease, or aban- 
don it, and that they ultimately determined 
to abandon it» but £ls there WaS a large 
dmoilnt of Valdable stock Whicb had belong-' 
^d to the insolvents, upOn the premises, 
they entered into possessioh and retsrined 
thehouSe, for the pui'pdse pf diSpbsinj^ of 
the stock, until the first day of May, 181(J, 
^hen they Vacated the premises, arid seiit 
the key to the appellant, who refused' .to 
accept It. '•'•''-^♦'' ,xi*^-i-'.m\::ni<*, i-,) t:\\\:-^ 

It further appears that sonl6 fcbmiriurifca- 

tions had taken place beti^^eeri the appellant 

and i-esporidehts, ibout the beriod when the 

bouse^as to be delivered u)p'i ' arid althongh 

thenaperivhich has since fe^eh admitted in 

^videnee viai tiQ% produced' belo^, I was 

anxions to ^colledt es^er^r pr^bbf of art actual 

agreement, m order to avoid the itricertainty 

determining upon biVcutnstantes. But ad 

the nnnpr' in'tviit^afiA*. ~->k_<u.i.-.. ^_i •_ „_!■* 

j-_j — .,, ,^t.v.cnvi4 iiiciciy cuiiiuiuH a pro- 

September I8//1. 

The trustees to 
fin insolvent es'ate 
take possession of 
certain preraiies 
pnder lease fo the 
insolvents, and re- 
tain the same for 
srvfral months af- 
ter the transfer of 
the property of the 
insolvents lo them: 
and it was holden 
by the Court, that 
Ihey were still 
at liberty to reject 
Ibe insolvent's in- 
lereal in the term, 
Bnd were, coDse* 
quentiy, only lia- 
ble to pay ae for 
use and occupation 
during the period 
they actually held 
pbssessioD of the 
premi8eB.--It wai 
also decided that 
there is no custom 
in this country 
which entitles a 
landlord toayear's 
rent when the in- 
aoUeocy takes 
place at a time 
before any rent is 
positively due, 



'' { 





Truitees of 




f,/o „., , ..ji j,: , ,,jj, 

'■•.Is I 

t 'iU.t /1|T. 

'« /! 


poMtion made by the appellant to two of 

innV T^*l" '* ^as delivered, and does not 
appear U> have been approved by all the 
trustees, and in point ottlct, has Lt been 
me^ upon, r^nj compelled to return to the 
case as it has betn transmitted, from the 
Ipyer Coort, and, in the absence of any fix- 

,mn«"l *^f'^''«'*;?'? agreement, decide it 
«pon the law which applies to the circum- 
s^ajices and statenaent admitted by the par- 

^2? ^^A S®°7® ^^^^^ argpment it has been 
«nSiv^ ■ "*' ^^A^ ^^^ batqkr^pt laws do not 
ap^iy here. As a system of insolvent debt- 
ors law Ihey certainly do »ot apply; be- 
cause we have a peculiar system of our iwn. 
specially made for us, and becaiwe there are 
Jpt the means here of csirrying the English 
hm^rppt la^9 wto effect; lut ahhough 
the l^aolcrupt hyy^ as a ^^ten^, do not apply 
tp us. we musf always refer to decisions of 
thp Courts at honip, to guide us in th^ de- 
t.erroinatwp of Ihoie points lyhich grow in 
S"^i? o«V*'^">»»^*«»t<^*«es. "^ith this 
yi^w, Jingljsh courts have had recoqrse to 
tjh/e ce^stobonontm of the civil law ; and H is 
repiarkablo that the rale which is ipplie^itt 
W^ simj»r $0 the present, is in^^reality 
turned from the Soman pode ppon the 
subject of succession, ^'damnosam quis- 
9VA^nJ^^mTATE1^ Apmu non compelli- 
Tun; pp W cases of l^anlcnjptcy the assiff. 
i^ ^ apt qWi^ed to t^ce % bwkrupt^ 
tern m an wtai^, ^^\mf^eJ lil^e tp do sp. 
low what are ^ circpms^iices bpfpre us ? 
I ;8 not «v*n contendeij tjiaj the trustees 
expressM^y mt^ntion of taking an asS 

f wry, it appears frpm fi^p ev^d^ce of Han- 
n^ifn, who WW W Iri^atyfprtftjjiip^p with 


nt to two of 
!)£ two tnis- 
md does not 
\ by all the 
las not been 
return to the 
;d.from the 
eof any fix* 
t, decide it 
the circum- 
by the p^r- 

: it ha« been 
laws do not 
)lvent debt- 
apply; be- 
of our own. 
Be there are 
the English 
It although 
not apply 
Jecision^ of 
s in th^ de- 
chgrow in 

With this 
reconrse to 
r; anidttis 
applied in 

in reality 
i nponthe 


' the assis:- 
B tQ «|a sp. 
before us ? 
je tfijifft^es 
^ a^/^ign- 
n tlije pon- 

e Qffff^r 


the appellant hir.iself, early in February, 
that H was mutually un<slfirstood it was to be 
giv«ii up, butat what period docs not appear 
to baye been exactly settled between the 
parties, l^or .ent, therefore, as a rent, they 
are not liable, but merely for ustand occupa- 
horn. There was no privity of relation, as of 
landlord and tenanir. between the appellant 
am* resppodents. They merely entered, un, 
der the possession of the insolvents, for the 
pqrpose of taking and disposing of the effects 
Which were upon the premises; and when 
they lad performed this necessary purpose, 
they sent the key to the landlord, in token 
of their giving up the house. Regular no- 
tice aod tender of rent were not necessary, 
because there was no tenancy to determine 
fs between these parties. In poiqt of fact 
there was a subsisting term at the time, for 
It appears that, up to the very day of the 
trustees ocxapying the house, one of the in- 
solvents (DaoUng) continued in possession : 
and tm constat but he might have determin- 
ed to retain his term in the house, and if he 
bad contmued to pay his rent the lapdlord 
couW not bare turned him out. But it is 
^leged that, by the custom of this country. 
m ^aae of ^solvency, the landlord is entitled 
to^ ^ year s rent out of the effects of the in- 
SQlF^t ; but i cannot find on record any 
proof of sncb a custom, por should 1 feel 
clisposed to follow it if I k^d. Surely, in 
this jjoontry, where property in the soil is 
bardly repognized as rcM property, the in- 
terests of landlords cft^^o|,be protpcied be- 
yond those of landhplderf in EngJand.-. 
Cases ^ay easily be ^Rppqsed in wl^ich tho 

the whole of an insolvent's effects, wd de I 
feat the entire policy, as well as the direct 
provisions, of an Act ofParliam^^nt i m- 




TfUBtees of 

DpouNG A 






TrtiBteesof , 
Jfnotttio <t 



cl me to beli*?ve the cnstofm contended foi^j' 
meatis nothing more (haft this ;— when rent f»' 
ift arrear, and the lessee becomes insolvent,' 
the Jandlord, having a riffht to distrain fof ' 
his rent, may Commute his right for a year*s, 
or any other proportion, of rent, ^hich he 
artd the tnistee« may agree upon ; but thi»' 
rtust be by express convention ; and if therd 
be none, the proportion to be paid ranstbe" 
collected from the circumstances of th(y* 
Hght which the One party has t^aved, arid- 
the benefiis which (he others "mav haTc' 
thereby receUeiii In the case before iis. ■ 
the iippdiant hai' no right tm distrain, fornrt 
rent had yet become due, and, consequently,' 
be had no further remedy against the re-' 
spondents, 'than for the use and odcopancy 
ot the premises during the lime (hey actifJ 
ally possessed them. In estimating the va->" 
liie of the use ahd Occnpafcion, (he retxi 
reserved by the lease may be presumed^* ^ 
fair criterion to go by. Now (he trustees 
occupied the house i'ri questioii from the 
27lh December, 1815, tilt the Isl May. 
1810, being little more than four months j 
and fbr this period there has been r*n allow- 
ance made by (he Suti-ogate equal tO hafif 
a year's reserved rent. The rent reserved 
s^eems to have been very higb ^ and the judg-^ 
ipent below iilgiving ohe-»third beyOnd it, has, 
J think, gone to th« full extent Of what the 
a^ellant can fairly be entitled tO. ft is to 
lie remembered that the possession of the( 
(rus(ees vvas not optional, but rendered ne-« 
cess.ary by (he trust they were bound ta 
perform, and- 1 therefore hive no hesitatiotr 
iti affirming the jddgment of thfe Surrogate 
Court, which was for £25a against the re* 
spoiidehtB'.'^"''^'* --•Jiuyiriuta.ii i>,» Ut -.Aohh uili 


ed for^y 
din foif' 

hith h^' 
tmt thisr' 
if there/ 
nnst be' 

af the" 
d, arid' 
y have' 
ore iiff,' 
, fornrt- 
the re- 
^ actifJ- 
the va-*| 
e ren<^' 
irtied {ii^ 
m the 


onths ^' 
16 half! 

it, has,'^ 
lat the 
t is to 
of thet 
ed ne-* 
jnd t&\^ 
the re- 

uv/ uiii 




Jonas Barter against James Johnst:(>k. 

.'J rfIS ', a^ion vras to recover Twelve 
I'ouiids, T^ree Shillings, and Fournende, 
«imount due as wages to plaintiff's son, 
While an apprentice td the defendant. 
' Jt ftpp^aried that plaihtiflCs son was hohriA 
m apprentice to defepcjant, as a cdlnnet- 
piaker. But that defendant having no em- 
P.'9y'neritin that line, had taken hisappren- 
J^ice wjth him to Harbour Grace, where de- 
>e|^fta4iT''^Jjflildwig a^burcb, i luK 

|»?\the apprentice, p»l conceiving him. 
eelf liable to work as a house carpenter, and 
f<?ejii^5 that |je was losing his time,, hy,^Wi 
iearmng hfe tVade, cj^me t'o 'Sif: ■ Jc^hn V a^tl 
f?/".E^^i??^ ^^ 1R> n?a^ist^atCT. who, aft^ 
!?T^^^,/^2'?^Miea several times before 
U^'^^EJ^fe ??^ :J.ein^>atisfiea tliut 
'^•VM^^^^VH W ^qploy merit for tfib 

2SSM#1^9^^^ H^e Jf • fcabihptlwo^, 
^ane<^W«Be IndetttMes. - ^- > ' 

"'^f^K*li'Mi| <<ieH{^, and several wit- 
?S^^ W^'^4'* **r tWeri; ihfe tW* gave 

P!L?P^t I^P E'f^^ ^^r on Which th^abt 

^ J'i ......I..! .. i -'-f ■l^'fli l 1 IJI 


Oi/»^ 2tf. 

A, matUr rm- 

plovs ■!! apple II . 
lice, whom h« had 
undertaken to 
teach a |iariicular 
trade, in another 
line of businpss ; 
the Court of Ses- 
sions thereupon 
cancel the inden* 
tnrrs— andtheSu* 
preme Court giro 
judg^ife^l- ^j^iast 
the master in an 

tlie apDretiliceV 

father' i'o recover a 
'coiuperisatiou f0r 
^Ilis servfpes diirtng 
Ibe ti^e ii.4 Wan in 
derendMlV pm-* 

r|Tru8tees,of Oj^LTON & Ryan a^aiV< . 

- ■ ■ ■ ' • J98£?f# SiMMs, 



_ HE action was brought to recover the 
sum of £80 0*. 5rf., of which £60 0*. 5rfwere 
charged for goods sold and delivered, and 
£30 for the maintenance of defendant's 
family while he lived with Mr. Dallon, 
Sundry papers, books, and accounts, wcr^ 

Mo action can be 
sustained for goods 
sold on the vtuol 
credit, until after 
I)i9 20tb October. 





Dalton St Ryan 


I.. ■ ; 

^' Where a obqm 
of lotion •risee ia 
.'Kew Brupiwick, 
the prnperljr of (be 
defendant it. pqt 
liable to •llacb* 
■ent tinder the 40 
Geo. 3, c. 27. 


proddced ; wTjen it appearcrd to the Court; 
that the goods had been sold and delivered 
on the usual credit,' to be paid for in the fell 
of the year ; and that, therefore, the time tif 
^payment not having yet arrived,: tJiq ;acti<j>a 
for thf! price of them was premaiiire. And w 
to the j£30, the Coiirt did not hold the de- 
/ipndant liable. . , - ; 

. ^ndgmei^t pro d^endfinttr ' I suH 

• ■ ^ '••;•■ ^' '•'••■•■■ ■■-''^ -• ■ ■ '• '■• •'! ; ■ 

^t7iE, Rsii^ «B Go. i^Msr T^nkf ''^ 

■■iiiul ■;;::;;. .:;;;>,, Aftll.I.SOOB*-.'!'- '- 

* 5tS'<:»u8ec^e on jeaterday^ 8^4 JJii. 
-^fia having been. furtherhe^Mj ,,,,,!., ,,^,.^ 

. It appeared that the nsl^, , y»aafi^ ^<\)i3^ 
Jhe sabject pf t^q fictipn, h^^, be^ii .shijpipfi^ 

That the i&sh h^d i?<^ei^ sp^ 
fendant, who, iii jpec^mhfer jfiffc^ 

J^cji^Q's^ New .pi^^ivick, lidyj&i^ |he pU 

' ■■•v >:'i 11') Ivo : 

, ^^i^J" fhej? cixq^Wtaffl^eA^i^^lie ::ft^ 
considered the cause of action to havf»>,su^ 
sen in New Brunswick, and, consequently, 
that the Coart-Goal44M>t«ttach4he-property 
of the defendant who residp^ there, imder 
the mbi tfi6 49th^ Gi^O;' 5; (»pi 2^^:' ^he 
suit was, therefbre^distttiftil^d ; but without 
cpsts, , , ' i 

t: iojJutjTjij 'lo 'j-jiiv.i'.'jU'A'.rji uiiJ 'kA Od 
.">ui\M\ ,ilfi iljiv/ ij'jvil !){i •Aiilif yUii\h\ 

_ , :■ . h!;'''v»i; ij<:; .•':!<.>(•■! ,-'1V([;ifJ V'tbi'Ufj 




ly c 


ant> ] 






who i 




tion ol 

est of 




the sul 


the Oouft; 
in the fell 
the time iii 
tliQ acti<i>ii 
r^. And 9» 
Id the de- 



■j:'. s 


sre, imder 

ut without 

■'. ^i^ll B. 
tii l)f)5.w;ii > 
iji.v viuni.l 

KooER Flahavan against Geo. Gamble. , 'Q^^: 

i}.¥Pr^^^^\ ^^' '^^ '^"^ «f a ''ouse. The 
defendant ackno^^ledg^d the debt to be just- 

,^1^'.^"! ''^'^*^' '*^«.'^^ »^^d no means of 
paying ,t at pfesent; that hti had a tvifeahd 

jvhich Mrould be due to him for Wages bv 

f^lTf^l^k ^''MoS^^' constituted the only 
iS^lfy^L^® satisfaction ohhis debt, and of 

Cttmbej^ed. tJndef these circumstances, the 

sam^lw''?^^^ 'H^^' ^d at the 

same tihic, ^iesifed Mr. tiogan to hold the 

^^t i!?*\«»g^t become due to the defend- 
ant, i^ubject to the ot^m of the Court 

A «tay of eitcu« 
tion granted, in 
consideration of 
the poverty of the 


I Wi i ^i< 

trustees/of CRAwroBD & Co. appellants. 
CuNiNOQAu^ Bell & Oo. respondents. 

^f/^r'l*?,' ^^^W'^^iice now ptol 
^^tic^d tfie folldwirtg judgtnent : ^ 

Jir^Xt?^ haft tai^ed^attticfetion upon Ihccon. 
StTo'ction of the act of the 49tli of his Matesty 
commohly callfed the Judicature Act, t^iz! 
yrbo mjko biB cbMdered a cnrtent supplier, 

titted to a ^riBfefeMfe payment, in the distribii. 
faon of an insolvents effects f As it is a ques* 

IT ^/.S^? ™<>^^°^ to the commef cial iiter^ 
Sl5*his Island and one tiptti which 8om« 
diff^ence of opmfon has prevailed, 1 have 
nnnn^i ^^^."^ the judgment of this cmirt 
upon rt. «ntil 1 ^shojjld be enabled to ffive 
-^e suujeci tnat Uelibjratc and KVeqirent'at- 

Octoler 23df. 

In the 49th Geo. 
3, c. 27, the worda 
" cunmt season " 
and •• current sup' 
plies," have an evi- 
dent rtlation to, 
and are eiplanalo- 
ry of, each other : 
reason, meaning 
the time of the year 
when the fishery is 
carried on ; and 
supplies, meaning 
the articles actually 
wed in the fisliery. 


\ I 




tention, which its importance seemed to de- 
mand. 1 cannot but be aware, that m the 
cJZ'nu'r^ir pPJn'on which fell from the Court, upon the 
VRAWFORD&Co. jiearing of this appeal, 1 differed, in a great 
CuNiNOHAM, degree, from the opinions which appear to 
Bell&Co, have been entertained by my predecessors 
in this seat, and were the decision that is 
now sought, of less importance to the com- 
inunily, I should defer to the precedents 
which have been set me, and rather follow 
a rule of construction, however 1 might be 
so unfortunate as to differ in opinion from 
those who formed it, than venture to unset- 
tle a course of decision. But impressed as 1 
" am, with the original error in the interpreta- 

tion of the act, and perceiving, as I cannot 
Otherwise than perceive, that the consequen- 
ces of that error have been injurious, inpror 
portion to the extent to which it has been 
followed, 1 feel that I ought not to sur- 
render my own Judgment ; and that there is 
a point beyond which courtesy may cease 
to be a virtue in a Court. The facts of this 
case are very few, and J shall briefly re-state 
them. In the month of December, 1815, 
^«<f/et<; 6Va«/or^, one of the house of Craw- 
ford 6r Co, pun aased of the respondents, 
Cuningham, Bell ^ Co., a cargo oi West 
India produce, which was designed for the 
Halifax market ; pnd which they agreed to 
pay for in bills, to be drawn for in January 
Ibllowiug, at six months date, on England, 
The cargo was consequently delivered,' and 
sent to Halifax, and the bills drawn and 
remitted ; but before payment was due, the 
Jiouse of Crawford ^ Co. became insolvent, 
and the bills were retprned under protest. 

Upon this state of the facts, the respond- 
ents brought their action in the Surrogate 
Court against the Trustees oi Crawford ^ Co. 
.for the full amount of their demand, and 











to ta 


I thosi 

I rise I 





ihg, ( 


as we 

But a 




the fa 




iish f 

that t 



sitive ( 


as itis 




scmed to (le^ 
e, that in tlie 
urt, upon the 
d, in a great 
ch appear to 
cision that is 
I io the com- 
j precedents 
rather follow 
V I might be 
opinion from 
ire to unset- 
ipressed as 1 
e interpreta- 

a9 I cannot 
J consequen- 
'ious, in pror 
it has been 

not to sur- 
that there is 

may cease 
'acts of this 
efly re-state 
nber, 1815, 
jse of Craw- 
:o of West 
^ned for the 
y agreed to 
in January 
1 England, 
ivered,* and 
drawn and 
Eis due, the 
t insolvent, 
• protest. 
e respond- 
i Surrogate 
vjbrd 6f Co. 
mand, and 




Bell& Co« 

recovered it, upon the ground, that the 
^'oods sold and delivered ai abovc-stated 

Tn^I-" ^^f "•"!"''? P^ f"'*'*'^' supplies; OV Trustees of 

J-iippiics furnished m the current season of Chawford&Co 

tlie msolvency, which took place in May ,. ^ 

18 K;. •" Cuningham 

Fromthejudgmentof the Surrogate, an 
appeal has been brought, and it now be- 
comes the province of this Court to apply its 
own mtcrpretation of the law to the facts 
which have been stated. But it may be 
convement, for the sake of perspicuity, first 
to take a summary view of the state of the 
case before the passing of the act, and of 
those circumstances which probably gave 
rise to the particular provisions which have 
excited the present question. 

The trade of this Island was at first con- 
fined to a simple fishery. Vessel.*, used to 
resort here, for the mrre (purpose of catch- 
ihg, curing, and ciu.ying uway fish, and no 
articles of supply were introduced, but such 
as were immediately necessary for the fishery 
But as the persons who resorted here were 
commonly in indigent circumstances, and 
dould only raise a credit for those supplies 
Which were essential to their fishery upon 
thefaitii of the catch of the voyage, it was 
natural that a local custom should grow out 
ofthis order of things; that the employer 
should have a preferable claim upon the 
fish for the payment of his supplies, and 
tiiat the fisherman should look up ta the 
Same lien for his wages. This local law of 
preference may be traced beyond any po- 
sitive enactments, and is particularly recoff- • 
Aised in the act of 15th ofHis Majesty, or 
as it 18 commonly called^ Sir Hugh PalHser's 


■;2AViV 'lOi 'iujji>c>';> 

It is probablW i\m}?^^ Island Kerame 
populous, and new eyenues of f rade were 

V I 



,^817. opened thp Iqcal custom of preferable 

^^^^^ SSi-^^V^'^f^"H^y ^^^^«ded beyond i . 

telT' *ih?f ^'""''?' *^'«''^^^°''«» ^°^ goes oa to 

'''' * ^''^ ^fLlT^% . ^y *«»« 6th section of the 

i^cl 49th G^o, m, e^p. 27, it \s stated that 

U >yil| gre^My contribute to the advancement 

^LfT'^A^i P^^"***^ becoming insolvent, 
were divided qmongst their creditors wuL 
more eguahjff than bad theretofore hem prac- 

^hiL "^^ -'P !^^^^^^' ^^^^ ^^ often as it 

!?^ k^ u ^^*^^ ^° ^PP^ar to the Cqurt, out 
of Which prqcess of attachment issued, that 
% gopds qttacbed were insqfficient tp pay 

debt^, It should be I^wl^l for ^|,e (ioyrts to 
m\mm the parties ^t a given I^ay ; ^nd f! 
^poE ex^mm^tion, it shpSld appear'tM thp 
dpl^tpr could ijpt pa;r twenty Z\Xmk\^ the 
Rpwd, ^p declare hSn insolvent, anf imme- 

$P far, the 4pt cpnt^ins a simple, ^Ithpueh 
m ^qual, pyste,n of msplvent I^w. But in- 
jBmuqji ai8 a l^gp 41,4 v^Iu^ble cl^ss of the 
cpmmMnity j;mm^^ ^s formerJy; ^i«^out 
capital or credif, ejccept such as tVey could 

mm, \%li^^ nyppsfiary to secure tjiis credit 

t.^^^^1 ^^^"^^ ^^ «*^ ^» *^^ bfldy of.the 
& ^?^ ^^P^^^*^ ^» ei^actment, ,>%A^ ««- 

^Si?f r f^^i^*'<'^, *o tbp general laV, im- 

Saf in iL^^J'T?: ^^ ^MPlHtipprovdea 

f^t^I^Pt; «^«»7 «?her|nap ^ho shallbp a 
^itor for «;a^., become due in 4e then 

SSLT^* '^-" 5'^^ *^« P^^*^ twenty 


>f preferable 
ed beyx)nd its 
It Judicature 
m undue pre' 
I goes on to 
ection of thei 
s st^ied that 
oundland, if 
g insolvent^ 
editors witU 
•e been pra^^ 
often as it 
J Court, out 
issued, timt 
:ient tp pay 
ount of hjs 
3 VQMrts to 
ay; j^nd if, 

ear th^l; thp 
IJing^ in the 
and imme- 
jffects, and 
pt ^\l his 

e, although 
V. Bat, ip- 
ly, without 
t^ey could 
^ton in ^he 
i tfiis credit 
qdy of .tie 
i^ ih$ na- 
il hyfy im- 
S provided 
fecjs o^a^ 
sh^li be a, 
n the th^ 
id twenty 




place, every creditor for supplies furnished in 
the current se<^m shall be paid twenty shil- 
lings in th^ poMnd; ftnd lastly, all oth^r T,„st^,of 
creditors equally, as far as the effects ^dl CHi^iS^p^ cy. 
gQ^ & 

In the construction of these clauses of the 
Act, It must be cojisidercd ^ reipedial sta- 
tjjte. It states the mischief and provides 
t}?e remedy ;--the mischief consisted in the 
tnequahty wh^ch prevailed i^ the payment of 
debt8.^and the yemcdy provided is, by en- 
^hlmg the Cpurts, ^pon pjoof of impcndinff 
msolvency. to declare the f^c^, proVeed to 
collect the insolvent's effects, and cUstribute 
them equally amongst all his creditors. crL 
vmg a preference only to ihejish^man for 
hjs wag-es, and to hjs supplier for those sup- 
p,Ucs which were advanced upon the faith of 
the voyage, and which are euti^Iedtoall the 
equitable considera^ons of a lien, to have 
extended puch a preference any farther 
Avould have beep to neutralise the spirit of 
the Act, qnd. instead of introducing a more 
equal moae of payment, to hi^ve created the 
most nnequf^l system of insolvent law in the 
YPrld. In this view of the Act, the wor^s 
•' current season " and " curretit snppUes " 
have a natqral relation, and are expl^na ory 
afeacl^other-^«<(,p;t weaning the time of 
the year when the fishery is carried on. and 
supphes meaning the articles actually nsed 
in the fishery ; and if thes,e wor^s had al- 

r5!l4^^'i*''^°^^f ? t° ^^^^' "^^"^ral import, 
no di^culty cpwld h^ve be^« raised upon 
iie act \ WMi\^^ gMuaVe^le^ision oTthe 
term " supplies " tp, all jhe dealings between 
one person and anptjierip I^ewfpundknd, i^ 
has ceased to Jiaye aujf de^n^e or (nteHid- 
ble meanings ^n^ the 'statute' is flow Jut?r- 
prete^ a^ if there \vere no' sueh word 0^1- 
"^^^"^^^^ W It ^ s^plm^^ if a ^sv^ Jo, 

'WjitMiiiMfiiitiii'i -li - II ■■ ' 


1 rusteei of 



BtLL & Gov 


ihdiscnraiftate preference of payment, to 
every person who shall be a creditor in the 
course of the year; whether it might chanced' 
to be for supplies of the fishery, or the pur^^ 
chase of a farm, or the luxuries of a tabled 
in proportion also, as the term "supplies " 
departed from the original simplicity of its 
ijeaning, the word " season," kept pace with 
U, until It was found necessary to have two 
seasons, one for the fishery, and the other 
for trade; and "season," which originallv 
signified nothing more than those tem^)erate 
months of the year, when vessels might fish 
on the Banks of Newfoundland, was made 
to commence when the fishery was practi- 
cally at an en J. 

. But it is not merely for ret^rsing the or- 
cfer of nature, and creating a contradiction 
m terms, that this departure from the act ig 
to be deprecated. in its operation it is 
calculated to destroy all faith in the dealings 
between man and man in this Island It 
gives rise to insofvencies, which are fre- 
quently forced upon unfortunate tradess/ 
because the creditors are fearful of giving 
time for payment, lest they should lose art 
equal claim to their debts ; and if strikes at 
the root of all confidence in trade, and com- 
pels a creditor to shut ont compassion from 

I am aware that (Vewfodndland has been 
considered as a mere fishery, and, by a poli- 
tical kind of fiction, every person in it is 
supposed io be either a fishertadn or a sup- 
plier of fishermen. J am not disposed to 
mterfere with any political considerations 
tJpon the subject; but I must observe that 
such a fixation drffers from the true principle 
ot legal fictioii—rN fictione ebgis seimper 
guBsisTiT ^QfuiTAS ; and it is, beside, a 
great departure from the fact; since there 


^ment, id 
tor in the 
it chance 
the pur- 
' a table, 
:ity of its 
jace with 
lave two 
the other 
ight fish 
as nnader 
s practi- 

tlie or-i 
lie act is- 
on it is 
ind. Jt 
are frief- 
f giving 
lose an; 
rikcs at 
id com-' 
n from 

IS beenf 
a poli. 
in it is 
a sup. 
3sed to 
^e that* 
tide, ai 
i there 



IS a considerable trade from this island, 1817 

sanctioned by Parliament, and independent ^_ - , -^ - 
of the fishery. Witness the several acts Trustees of 
which were passed in the 51st year of the Cbawfoko&Co. 
King, those which have passed since, and n ^' 
the act of the last session of Parliament, ^BeIHTco' 
authorising a reciprocal trade between this 
Island and all the other colonies. But we 
have no occasion to look further for an ex- 
ample than to the case before us, which was 
a shipment of West India produce from this 
port toliali/ax; and which, without doing 
viplence to common sense, cannot be consi- 
dered^ as a supply for the fishery of New- 
|fo« ^l!and. Such are my sentiments upon 
-p Ci ; and under the impression of them, 
*t.^^ impossible forme to affirm the decree 
of the Court below, 1 have a consolation 
m knowmg, thrt if my humble judgment 
should err, that it is in the power of the par- 
ties to have it correctpd; and I shall hope, 
that as this is the leading case of a class of 
cases, involving a very large amount of pro- 
perty, that the parties will ^ake the benefit 
pf an early appeal to his Majesty in council. 
Judgment reversed.— Against whichjudg- 
njent, the respondents gave notice pf an 
appeal to Pis Majesty in Council, 

Abraham Malzard against Huie, 
Reed & Co. 

'EMBERTON, of Burin, was indebted 
to lime. Reed ^ Co., who commenced their 
suit against him in the Surrogate Court, at 
»t. Johns, and recovered judgment on the 
25th June, 1817. 

i?^^^T*!r7^'*'® judgment in favour of Huie, 
Meed dr Lo. was pronounced, an action was 
pemmeaced, and an atiac/ment sued out. 

October 2Qth. 

Where pootfi are 
sold on credit, I he 
price (hereof is 
subject to attach- 
ment in the hands 
of the vendee, un- 
der an execution 
against tlie vendor. 

*^#f *ig?^«i'W5^*<ipfci'' ■>,#"^ 


BUIB, RsfeD 


by Sdmud Sf Oeorgi SfouUon, of Burin, da- 
ted 4th May, 1817, under whioh the fiSh of 
Petnbertan was attached iu the hands of his 
attoMey il!lM/%. During the forCe ofthe 
attachment, Pemberton, who was then nt 
Halifax, Wrote to Mulhy, under date iStb 
M^y, directing him to dispose of the fish in 
his hands, and apply the pi'oceieds tb pay 
the amount of certain bills (to which hte 
was a |iarty) then under protest. Upon, 
'communication beiw^een the parties, Samuel 
4r Oeorge Moulton withdriw tmit altachm^% 
and the fiSh wAs then sold by Mmiloy, the 
agent of Pemheridn, to Matziti'd, in consid^t'- 
ation of his (Malzard^s) becoming bound 
by promissory note, or undertaking, to pay 
the said j^lamtiffs (Monitons) and <Me HaM- 
ilton the Amount of thetr demand against 
P&nhisrton. This transaction took plabe 
and was completed by the 14th June, ani^ 
the fish deli<re^ed to Mahard, who bfbugbt 
it to St. John's, where it was imtaediately 
attached by Huie^ J^eed ^Co.^n'po'Q^^e 
alleged ground thAt the above v^as a collu- 
sive transaction, and that the fWh siiVl if^- . 
mained the property of P^hefton. 

The Chief Msticisotdeted the cas^ ^b 
stand over for proof 'df the Mtts oh eW(ih 
side; and, in the mean time, plaintiff to be 
allowed freight, at the rate of 1*. 6d. per 
quintal, by Hvie, Reed ^ Vo., who wre^e ta 
give security for the baianc^e. 

NOTfe. — Another ooffon «oae oait tof tbi* proa««dii^« 
in which the preQentf>|fcirfliiff i^Mdllita ^A Sheriff for 
having illegally, as ha insisted, atlabbed the fish which 
formed the ■ubjeet qfdispute beCween thiese parlies. ATler 
m full investigattion of all the ^ircirmstanees connected wit)k 
the transfer of the fiAb to MalzarA, the Chief JuHice 
held that the sale «^Bs niof/raiM/M/enO but, at ifae aamo 
time his Honour decided, that as the price of the fish bird 
not been paid, the sum to which it aiuouuted was attacli* 


^tirin) da- 
the fi^h of 
ads of his 
rCe of the 
s then i^t 
date iSth 
he fish in 
ds to pajr 
Mrhich hh 
t. Upon 
Sy Samuil 

'ulhy^ the 
ig bottnd 
ig, to pay 

d agaiiid't 
dk plabe 
^tiil(6, ati(l 
> bfbught 
} a c<iik- 

caSte ):(d 

oh e*<ih 

tiff to be 

. Qd. per 

) W^e ta 

-SAmj^ fot 
fish which 
riies. ATler 
nectfid vritlk 
t ifae 6i»ino 
:he fish hird 
vas attacli- 



■ ' • 




'j'lo bii/i .hji'^-'^Hnhw^ >jt] rv. 



HIS action wAs brdught in the Surrogate 
t/oort to I'eeover: the sum of £1447 ^s.Odj 
as current eiippHes for, 18ld, beiftg. the- 
amount of goods Sold and delivered by the 
i^espondents to the appellants. in the month 
of December, 1815', k^er the dose^f accounts 
betwreen the parties itit that year;' 

_The bills whiich wetd dl^wn for payment; 
of the above snmbaviiigibeeH netnm^d und^r 
pi'ot€8t, the respondents commenced thdv. 
action for the amount^ -and Obtained a }udg«l 
m6rit below; m)W whi<jh thb'p?esent appeal 
^a» brought tb'theSttpr^im^B Court. -r 

■ Oh this d^y his Hdnour ih^GhitfJusiicei 
^8tV6th0fdll(i#fhg judgment : r..., cji •.. i 

Afrthefabtsiof this case Ijwng it :*vithin 
the j;fmctj9(^ laid 4^tvn by this Ccwih in th^^ 
case of Cu>ninghm,jBen^4)^. v^m Trns-; 
t6es of G>^a«j/^^i^i;Ctoiiiti rikustlifollow the 
^nife cidOTse <!»f';dtt<iis«oii, ailditWe judgment 

«6itti6 didubts^^pfea^ing %^ te&i upon that Ae^ 
cibioa, wbetto a cifeditopifor supplid* for;.' 
imhtd'MfBre ihle 'b^iSkni^g of Me fishing 
seasimi ^^ defihed by the Court, is td be^ 
considered a eurrent mppUe/r Of that season ;{ 
*3f ** *»^iBg desirable that every doubt 
shouldi as far a6 possible, be removed • 1 
shaH take this opportutaity of explaining the 
scibpe and object of the decision, which ap- 
pears not to have been accurately under- 

, The case of Cuningliam, Bell Sf Co. was 
intended to draw a broad line of distinction 
between the general trade of this island, and 
tnejishery, properly so caiied. in the form.-^ 


Articles really 
necessary for ib« 
fishery, and fur- 
nished, hand fde, 
for the prosecution 
thereof, are enti* 
tied to a preference 
as current mpplies, 
without rererence 
lo the period of the 
year in which they 
were issued, pro« 
vided they ware 
supplied after the 
clo$e of the prece^ 
ding seaiotu 


I i 



er to enforce a n^ore egual payment of debts, 
T„..* , *°° ?? *"® ^^"^"^ ^9 secure to "the current 
CRA^wFOBb&Co: Z^f'u ^^^^Vpii^f^^^fe^hich was intend- 
& ed to be given him by la\r, and which must 

Hunters & Co. always be endangered, and often destroypd,^ 
by admitting evtrv creditor to rank ind is- 
, cnmmately with him, 3y protecting the 

.^^ n security of the -supplier, the credit of the 

'» fisherman is increased ; and by advancing 

<!^lr,iC,:' , ; 5?® fishe'toan, the fishery is advanced. Tho 
:t:u;^!:t::;i:t;^^»^Si» d^ni^g the terms ^«wa*o»» anrt 
:r ^liP^y*, was anxious to avoid fix^Ig any 
precise time, for< the one,, or ennmerating the 
articles which tshonjid cpmposq th^ ol^,) 
' but to leave eswy c«S9 to be deteriniflpii by. 
Its own f^cts. It is always hazardous to lay 
, down general niles, because it isdifficnjt so 
to frame them ns to meet every possible case j 
and to &x any precise time when the snpply 
for the season should beg^n, would be to fi;^ 
npon the Court tiie necessity of sometimes 
doing imustice. This much may be si^f^ly 
said : If the articles supplied be really es-« 
sential to the fishery, and be advanced tQ 
the fish-maker for the purppse, and m\h 
the bond fid$ intention^ of enabling him Ic^ 
commence or continue bis usual occupa* 
tioil, they are eurrent supply ; and the Pourt 
will not stop to inquire on iwhat dayi pf ii| 
what month, the articles were advanced, 
provided they were supplied at any ti«9 
after the close of the preceding seasoB. rr. 
The Court reversed the judgment of tfa^ 
Surrogate Court ; and the respondents gav« 
notice of an appeal to his Majesty inCowijciU 




it of debts, 
he current 
as in tend. - 
bich must 
ank inidiiB^' 
icting th& 

dit oflh^ 
ced. Tb^ 

Hing anyi 
ratii^g the 

ojjs to lay 
ifficnU so* 
ibie cas9 ^ 
he siipply 
1 be, to fij? 
be s^f<^ly 
really £Si 
ranced t(| 
uad wi^h. 
ag bim ici 
lay, Of i^ 
any ti»Q 

^nt of tbo 




V Bainj^/Johnston k Co. «|^af»M/ Jonir 

^•, : - -nu-;W5^.,. J>JicHOLa( & Co! 

J. HE plainli^ having ';;tApl«e^ ju;i^i^t 
%ili^st Mdward Jeliance, a dealer of the de- 
fendant^, on the 16th September last, sub- 
ject to Other current cfamis. on this day, at 

it'TT^ r ^^^ Pi^'°"^«' ^»» order Was 
issued directing defendants to rotam into 
this Court» on or before the lOth day of 
mvember next, a true and correct state- 
ment of the account current between them 
and the said Edward Jeltance, so thata rata^ 
ble distribution of this yearns voyage may 
be made to th^ current suppliers. , 



V I 

• • ■' .■ ■ / jj < > 

. Ordijr la pupplj« 
ing mercl^airt to 
fuhilsh a states 
ment of his account 
with one of his 
dealers, that the 
proceeds of the 
year's voyage may 
be distributed rata* 
% among the 
current suppliers. 

^parte, GRAHAMLixTtE. in the'nmtier'i^f 
DooLiNG & Kelly's iosolvency. 

t^v.^'^ ^^^*^"^ f^^ P^'^ Jn support 6f 
th,e|>etition and against it, ^ ' ' • 

lh6 Cf^ief Justice S2dd t ThisiaaMpfSfinW 

thj0r8,ofthe insolverit estate of: i>66iif,.g 6f 
W%, P^ayng*^^^ admitted 'to a mfWe 
share m the distnbutjpn o^fc^H^^^^ 

*?f ^ the petitioner fortnerlycarrledp/d c^ 

October miL 

Jf premises which 
nave been mort* 
gaged be destroy- 
fd by fire, after 
the insolvency of 
the mortgagor, and 
whilst they were 
under the conlroul 
of the trustees, the 
mortgagee can 
claim upon the ge*' 
neral funds of the 

*'«nv m tn^ paymrat. took a 1 

i I 




^ ii 


in ibe matter of 
JJooLtiTG & Kel- 
ly's tnitdlvauoy. 

■• -:t:]A £ iin,!.f. 

«ii{ lo otto flJi-w 

.:<ios -^j^t V 

"i'iOKt !('»9l3 ••'/I'.' 

rtiia ,f)>'<\ /if i 

ill 'rvHorUmi: "'■; 

rlnvpiw^Uance of this deed, J)ooUng ^ 
J^e% entere(}jipto> pRtitionier's busJDess, as 
general s/iopkeepers, and took possession of 
his stock and trade. The first instalment 
was l-egularly paid f but in the month of No- 
vember, 1815, before the remainder, amount- 
ihg^^ to the sum of ^3,420 had become due, 
they were declared insolvent, and trustees 
M-ere appoint d to collect their effects, and 
divide theip among the creditors according 

'Soon after the insolvency the petitioner 
proposed to the trutetfees to give up his 
claim' upon the insolvr»its' effects, upon con- 
dition (hat the above-mentioned houses, to- 
gether with the. arrears of rent, should be 
delivered over to him. To this proposal 
there appears to have been no direct reply ; 
but it would seem that the trustees did not 
deem it right to accede, inasmuch as they 
afterwards received the rents of part of the 
mortgaged premises, and the petitioner ne- 
Ter entered into possession of them. Before 
anything, however, was done, the whole of 
the mortgaged property was destroyed by 
fij-e; and in consequence of the loss of his 
3ecurity, the^ petitioner claimed to rank as a 
general creditor upon the estate of the in- 
solvents; and with this view he wrote to the 
trustees, who replied that the debt was not 
disputed, and that he would be entitled to a 
shprie of the dividend when the current sup- 
pMfs, funiji other pr^arable claims, should 
liave t}eea j>aid 29^. in (he pound. ; ;! 

_ Upow this admission, by ihp trustees, f 
shall merely observe, |n passing, ihat it is 
the duty of the; Court, under wbos^^uthori- 
ty the trustees si^e particularly pi aced» ^ot 
to suflTer thei iii%ests otcreditoi^ to be inju- 
rp;d hj^ un|uaird€d admissiqns. , ' 
Unless, thei-efor^^ thft ^jftisji ^ t(ie peti^ 







Pooling ^ 
siness, as 
lession of 
, amount- 
ome due, 
\ trustees 
ects, and 

.Tilinj Ni;WF0UNDl^AND4 

tbner may be found to rest upon a more so- 
nlk""T?^"' this admiseiolTwill not sup. 
^?wVk * °'® ^'^ ^^^ P"°^P^» facts, npi« 
7\tf ^A *i".^«*>o"« have heen raised for 
e consideration of the Court f is the pe- 

aS.'fh'''^' ^ .^r^ '^"^^•^^•"g demand 
gainst the general funds of the insolvents ? 
and IS the fund itself to be dividXa„aTlv 
am.ongstallthe creditors, or only amTnt^ 


thuf^i!" ^^^"^^ P'^*"*' »* '^ not disputed 

debt Ind!lT^'^' ^"' ^'^^^ ^^' « ^^^Me 
tnA uu^^C ^l^'y mortgage implies a debt: 
and although there may be no covenant ?«; 
the payment of ,t. yet the mortgagor contl 

s^' dec^d'^d " ^^"'^ ^~^' '^' beenLprTs!; 

In cases of bankruptcy in England if * 

creditor hold an insufficient security fir bis 

plied in the first place, to the payment of his 
demand, and prove the balance, ifany re! 
mam due, under the commission ; and it 
should seem, upon the same principk if the 
property upon which a specific security is 
held, be deteriorated, or destroyed, the ere! 
d.tor may resort to the general fund in The 
hands of the debtor or his assigns 

A doubt did certainly present itself to me 
at the hearing of tJiis petition, wheth^ The 
<lebt which 18 now demanded, being p^able 

a nnn7 ,^«^ !:e&«'arly. at common law. 
a contingent, or /mure debt, was not prova^ 
ble under a commission of bankruptcy ; aiid 

thestatute7th Geq. Ist.whichwasinteS 
to reinedy . the law. does; nbt apply h?.^ 

But npon^^^kingparticnlarfyattl^itS 
fie,peti, i/ aud^tw a^ oWekdtl^?!;^?^!'^: 


up bis 
pon con- 
uses, to- 
hould be 
ct reply ; 
} did not 
li as they 
rl of the 
oner ne- 
whole of 
oyed by 
ss of his 
ank as a 
I the in- 
te to the 
was not 
tied to a 
^ent sup- 


■ i ■ 'f 

;stees, I 
lat it is 
■ed, pot 


Graham Littlv 

in the matter of 
.LX'» insolvency. 

uf ssuiti 

»'(" .'riiKii 


I !3 



101 r. 

regulating insolvencies in this Island, speaks 
of ^uch persons "as shall be cretlltoi-s," and 
would seem intended to have a prospective 
foi-de; Ir 

-"w...,.ucKivKL. Before I enter uport the second point, I 
iVs iMolvttjcj. shall direct the accounts to be produced^ 
and tlie proceedings of the Imstces to be 
laid before the Court. . , 


Grar'am Littlb 

It) tHe matter of 

ywember 14th. ^k 

A writ of Baheat 
Corjma to remove 
the body of Pat, 
Kent from the 
gaol at Ferryland, 
and a writ of Cer^ 
iiorari to remove 
certain proceed^ 
ings in the Court 
of t^ess'ons, at 
Ferryland, into the 
Supreme Court, 
issued hy the Chief 

N this (lay, Dawe (upon tfie affidavit of 
Patrick Crane) moved the Court to issue a 
"Wffit of habeas corpus, to bring up the body 
at Patrick Kent, whom he stated to be in 
confinement in the gaol at Ferryland, under 
a_sentence passed on him by John Baldwin, 
Robert Carter, and Andrew Morrison, Esqs. 
justiqts of the peace for ihe district of Fer- 
ryland. He also moved the Court for « 
writ of Certiorari, to remove the pcoceedings 
held in the said Court of Sessions in the 
cause entitled the Kin^r v. Patrick Kent. 
The Court granted both his applications, 
andi the several writs Were issued accord- 

November XAth. Tn the matter of J. Ex5D£rcott*s Intestacyi 

JIT having been stated to the CoUrt, that 
JohnMndercoU, of the parish and coUhtV of 
l>eyon, England, htely*died*irite^t;ife, Ifea- 
vm'g certain property and eft'ecfi in tfiM 
iJilai^'t?, part of which i^ stilted to Wittth^ 
pp8s^s;sioii of Mr, WimdmBut(,of^jeMtti 
B^y; pT^nt^r, his late master V it fs/ ifei 
%^''9'^%d b^ the Court, tbathc, the'isaiii 
irtj^iatn BmM forthwW Mk^ out'hi^ 
iiG^dunt .<?u¥TeiiVwith the estate of tlie skid 
^eceaseH; aM cer% thh saiA6 bjidn' o^fr: 

Order to a parly 
to produce an nc 
count, upon oath, 
of the properly and 
effects in his hands, 
belonging to an in- 
testate estate. 





ind, speaks 
litoi-8," and 

nd point, I 
tees to be 

iffidavit o( 
tu issue a 
I the body 
to be in 
nd, under 
> Baldwin, 
sottf Ksqs* 
t of Fer- 
Hirt for a 
9ns in the 
'ck Kent* 
1 accord- 


' ■■ .' ) ■■ 

tirt, that 
^onhty of 
tc^te, Ifea- 
I [ft tfif^ 

3, thier^.: 
the said 

tlie said 




*k'* >«j"";ther ordered by theCoort, that he 
eSoS'/r' '^' ^"""ediately pn tbe 
rnnT? u""^"^^^* *'*^"«'"'t the said ac 
count, together with such balance ^9 r^^ 

"he sL 1^""^^ ^"*^"^'»= '« ^''^^ «ta?e 
Court .«t*r''^^''''.' *^ *'»« ^'^'•k of this 
rn„„! ' r *t^ '^'"^ *"°^' transmitting an ac- 
count of such goods, chatties, and efflcts as 
may remain i„ his hands, or in the hands' of 

Bav Ihl P^'"'''" '^'^^"^ ^« Conception 
iJay. so far as comes within the knowlcdc© 
Qftam, the said rTiYZ/am Bnlt ""^""^^^^^ 



In the in»M«r of 

;l (,(' 

(* t f I '.I ' 

..'lui vuij 1 »; 

7 V -— — r- ^ ■; 

A. HIS action bronaht l>r «»,i.i*i. 
g;^«/"-, »s the .ttomey of hi ft fer3 
'F'nter, to recover the sam of Am i^ 
°"7«"» aflnaity due br^r ^Tir^^^ 

wS"d ly ''boml eS:S'bv « "'"'^^ 
sent defendants, «*««»t«<l by the pie- 

n^aJT^" "'•Ww- proved bis having di- 

had ^rf««ed payment ; tbathehad inform^ 

»r»al. ^d tiathe had, thS' C,^ 
obtained from /oA» Winter, ■ "^ 

November 20th» 

In an action in 
which one parly- 
was sued as (he 
principal, and two 
otiiers as ■urelipg, 
in an annuity bond, 
the Court gave 
j'ldginent against 
ihe principal, with 
permisson lo the 
plaintiff to look tq 
the sureties, in the 
event of his not be- 
ing able to obiaiii 
salisfaclioo from 
Itbfc priqcipal. 



A MrviQt in ih« 
fishery who Ukts 
llie supplying oitK 
chant's billia pay. 
ment of an order 
tlrawn by his em- 
P'oytr for wages, 
thereby discharges 
the liiasler from all 


'Z^;;;;;^ Phiup Meany against Thomas Pyn^. 

a servnnrl ,: /•' ^?'"^ *^e amount of 

^servant s wages, for which a bill of e^ 

change had been drawn under the following 
circumstances. The plaintiff was shiled 
by he defendant m the spring of 1815 aS 
a fisherman, and was to receive as wa^S 
for the season the sum of £30 to h« t.;;^^- 
cash or ffood tills nfL^ u * . ^^^ ^^ 

of the season An "^^^^^^^ange at the close 
wi *ne season. An order was drawn hv th« 

.u.^^lf?"' '" ^^^""^ ^f pJaintS upon lis 
supplying mertjhants. /?o4^7o/mX 2^ r« 
of this island, for the sum of £20 bdnt th; 
balance i^fAvages dde from th^defSnt t^ 
pK^nt,ff; upon a .tatea^nt ofth™^^^ 

cJnJ-'^^'''^' accepted by ^.C^i 
Co., and inpayment thereof, ^aL drewabiU 

plaintiff, by whomit was indorsed over and 
in the course of negotiation oresentprl 2.. 

the bill it if ^^'*- P"i'' i^^'OB^oence. of 
r ^er i^unam. iims case, however anioii 

change m favour of the servan? fn. f^' 

'•• K- I 

) ■ 

*- 7,1~J|M»P'»"'.J1. ^ 


MAS Pynn, 


lit to recover* 
he amount of 
a bill of ex- 
tlie following 
was shipped 
? of 1815, as 
ve as wages 
to be paid ia 

at the close 
Irawn by the 
iff upon iiis 
50, being th» 
lefendant to 
Jir acconnts. 

Johnstmi Sp 
y drew a bill 
voUr of the 
?dover, and 
'esented for 
'as returned' 
the plaintiff 

ages fol- tb^ 

ever ^wali 
, 'bow far » 
Jer for wa- 

bill of ex- 
it for the 

wages fop 


The rule of law which prevails in other 

sZtv r' ''^ ^''''•^^'' " '^?^'-^ ^" "^ ''•"• «r «'h'' 
bv th^y 'Vn^y"™^"^ of money, is discharged 

n^rln ''''' accepting a new secunty, is 
peifectly clear; but there are circumstances 
connected with similar transactions in this 
« and, winch make the rule not so clear in 
Its operation here, in the first place, the 
servant usually contracts to be paid in a 
iTelan.^'" ^^ «xchar:o o. GreatVritJnor 
dom iH,; ""' ^^' <^mplr/er, who.issel- 

"ora but one remov ) j .ove t e servant has 
nomeans of drawing ..d, a Uli, it St be 

fa ll i.^ r ^ goodness of the bill upon his 
taith ,n us merchant, although he might not 
Oe. dc facto a party to it. But, on the 
o lier hand, it might be said that if the em^ 
P oyer had intended any such guarantee, th^ 

a^i iTw '"-'"i ^^'"i ^^^^^" ^" his. favour! 
and by hira mdorsed to the servant who 

won d then have had his double security upon 

he bill; and that the circumstance ofTo" 

avmg resorted to so natural a way of 1 xin^ 

presumption equally strong, that the plant* 
bills '°*«"^ to guarantee his merchant's 

absence' nf""^'"^ "^""'^ *'^^«'^^*' ^^^ 
drawn frnm ^""^'^T agreement, principles 
orawn from general convenience and nuWic 


se/vL?hfmJ?/^"T ^^^ P^-'^*^'- '^^'"ere 
beJZ J'«\««*f'.^«J possessed of little credit 

cumi ^* l^i}^^ ^^ *^^"^^« from the cir- 
chTnt Th' ""^^l ««nn«<^tion with the mer. 
ofH?p v?^ merchant pays the disbursements 

Iv disrl/JM;'"^'""' "'f ^'^'*' ^d "'timate. 
jy discharges the servant's wages so far at 

least, as the effects of the voyage wdl ^^ 




i ! 



I ' 


It w to the produce of the vovaffe itself 
that the servant first looks for his payment 
2n/th%'".J"f '"^ to this source of pa^ 

»h^« I '} '? *''^ merchant who receives 
the fish and oil, and who always rece ves 
them subject to the lien of the servant for 
his wages. If the merchant were to be re- 

iTtlt'""""l''^^"''y' ^"^ considered as 
a stranger in the transaction, the servant 

JvoiUd most frequently be the' greatest suf' 

tin!.^^*^*f"' ^°' ^^''*^^" purposes of protec- 

cons derpS ''''""' '"™^^'^' '^^ "'^••^h««t •'« 
twp!n fi ^^ ^ P^'^y *" t''^ <^^tract be- 
tween the servant and the planter, would it 

iW ?h JT^'- '• ^ '["' protection/ by hold- 

«L? ^'" ^'"."- ^'" '*"* *^f exchange, the 

Sn"* «;erely acted as an indifferent 

person, and m the event of the bills beinff 

yent'TJt'fl.'''''' *"'^ '"'^'^ becoming i3 
7n ?L KM '''/ '^•''^^"' ^^ ^'^ ^'e considered 
t?tli f t^I*' «^^f "^'•«» ^^'•editor. and noten- 
titled to any preference of payment for wa- 

feward Hnfr*"''/. speaking, wages are the 
ter^sti S? ir ^^^ •P''*'^'^ beneficially in- 
terested in the services performed to the 
per8on.performing such services. 

nerally expressed as the mode of payment 
bill oSh^' ^^^^rstood to be the & "s 
bill of exchange; or, in other woi^s. that 

Kill r f servant, notwithstanding such 
bill of exchange, it must follow that fhe bm 
Of exchange itself carries no specific claim 
for wages along with it. so as to be endS 

thk rmf.*' '''T ^.' .™^ *»^° experience in 
thw Court may be, it is sufficient to convince 



voyage itself 
lis payment ; 
[»urce of pay*, 
iy protected 
who receives 
ays receives 
e servant for 
ere to be re- 
Diisidered as 

the servant 
greatest suf- 

s of protec- 
merchant is 
contract be- 
?r, would it 
i» by hold- 
>*hange, the 
! bills being 
ming insol-" 
and not en- 
en t for wa- 
ges are the 
?ficially in- 
ned to the 

hicb is ge- 
f payment 
e planter's 
Olds, that 
or the wa- 
ling such 
at the bill 
nfic claim 
e entitled 
! event of 
iflg insol- 
3rience in 



me, that, as the solvency of the planter de- 1817 

pends upon the solvency of his merchant, if ^ — , A_ ^ 
this preference of payment were lost to the MEANve Pynn- 
servant, he would, most commonly, lose bis '"^*'"'*- *^*''*' 
wages along with it. And the uniformity 
ot justice requires that the same rule of con- 
struction should always be applied to similar 
cases ; and that a bill of exchange should lOt 
he considered as good for wages, if the mer- 
chant's effects will pay it; and no bill at all. 
It the planter be the better paymaster of the 
iwo. Circumstancep, however, may vary the 
rdation of the parties to a transac ouin 
other respects like the present. For exam- 
ple, an express agreement, or an understand- 
ing amounting to an agreement, would do * 
»oj but, in the absence of all agreement 
whatever, I must decide upon popular prin- 
ciples ; and it affords me a consolation to 
think, that the decision I am about, to 
pronounce in this case is consonant to the 
rulei of determination in England.r^lshall» 
therefore, hold, that the servant, in taking 
the merchant's bill in payment of an order 
drawn by his employer, thereby discbarges 
the planter, anless a contrary intention of 
parties be shown. 

In deciding in this way, however, I am 
^"'aro that my limited acquaintance with 
the business of this country leaves me very 
open to.error in forming my judgment; and 
1 shall, therefore, be always ready to listen 
to any new arguments which may be made 
upon the subject. 




•Oeccmber &th. 


Patrick Keep against Trustees of 

»HANNAN & Co. 

Servants in tLo 
fishery who have 
taken, at the dose 
of the season, bills 
from the supplying 
merchant in pay- 
ment of iheir wa- 
ges, are entitled, 
upon the return of 
those bills under 
protest, and the 
insolvency of the 
drawer, lo claim 
upon his estate as 
for wages. 

^f timfof X^'T^o"' *^^«^ ^« *'^« ^««ver8e 
wS?h illustration of the reasoning upon 
wa shL>n^^ TheplS 

iHe year 1815; and at the close of th** spa 

*te"l. ^'^ '"''\""« *« receivereof bis 

of ift?« ,k I,. ''* '""sefailed in the sprine 
to S?*.""" '''i' r^'-'ned under protest 

irtheSfo J jr^^? '" P«y 'he servants. 
plaktlF^^;.i 5 K " of "Change which the 
a Meff^M l***^ ■"" "ailable to him as 

That a hill f^ ^" ''"Ses altc-ether.-l 
clafm l,»i h °' "^^s /an^es a preferable 

onTyreml^T •'^''*?'^5L ^^'^^^ ' "^ it 
Wstinn K^ *» "qu'rehow far the bill in 
qnestion bemg drawn in the fall of the year 

rf another year, will affect this partiSul^ 

^ The act of the 49tb of the King, «!«, a 

&nv ™r"'r'"^^'"»°! '^hich, taken 

s^onV nV .i:- ? S'""S effect to the provi- 
sions of this act, we must remember tLt it 

se=«i„ f ^* '"'"'"encies during the fishing 
season, for reasons of evident policy that 

Sf if'theTj"^' ""' r'j>-y-^«^»the 
IZ ^„ „ ^°"' *"'' 'hat when they are 
& /• P"'''"'ance of the statute, it is in 
*>«. of exchange, the goodness or badness of 



stees of 

he converse 
furnishes a 
oning upon 
'he plaintiff 
planter, in 
of the sea- 
, drawn by; 
;ivers of bis 
same bouse 
1 the spring 
tier protest 
has not a 
! servants^ 
which the 
i to bim as 
n's estate, 
d ,* and it 
the bill in 
f the year, 
the spring 



, girea a 
s become 
ch, taken 
n of the 
lie provi- 
er that it 
is island 
e fishing 
cy; that 
mtil the 
they are 
it is in 
[Iness of 


which cannot be ascertained until they are 

sent home and presented for payment- 

which must occasion a delay of some months,' 

ami without any imputation of /«c//^, on the 

part of the servant, may throw him entirely 

out of the protection of the act, if the word 

current be confined to the exact limit of the 

season. To the law any operation at 

all. It niust be construed to include all the 

interval between the close of one season and 

the commencement of another (while the 

proceeds of the voyage may be supposed to 

be not entirely appropriated, and new rela- 

tions growing out of the approaching season 

?easo^n1fth"'[f-''^^' during this tfme. the 
leason of the thmg requires, that if a bill for 
wages be dishonoured, the demand for which 
It was given should still subsist in the full 

Wreffects'' ^"'"' ''''''"' ""^^^^^ ^^"^ ^'^'^^' «f 

«,7?/'r l^^ '^^ ^ contrary interpretation, 
would be to make it a dead letter. It?s 
rather to be lamented that its provisions 
had not gone further, nnd given th!^ crS 
^IZ^^^uit^^ preceding .eason an equa 

lor the fisherman is clearly the first obiprJ 
of thecare of the legislature. But neeS 
preference IS confined to the current seLr 

that liberal interpretation to the Act vyhici! 
may secure to the fisherman the benefi 
which was mtended to be conferred „>on 

As, therefore, the merchant who mav 
have furnished supplies for the season Is 
considered a current supplier within ile 
equity of the statute ; so the servan who 
may ha^^e received a bill for entitled 
T.Vtl''}'^ t'-^'^ bill, to Lvf a pS 
•-^v ^^ami lor his wages, although the sea- 





Shannan Si Co. 


I * 

SU Attn AH & Co. 


new season "'^ commencemeirt of a 

lence to propriety m language. " ^ ""' 
ihe principle of the case being disnosed 

Sribi Jd in IT*"!' b^ been affeady* 



earned, pro- 
cement of a 

' ^ay, J am 
d theinten- 
t deviating 
ng any vio- 

ig disposed 
iered is its 
inan ^ Co., 
en already 
the rule of 
sdits what- 
\ieafor the 
is difficult 
It the loss 
are inte- 
• There- 
upon bills 
'uch ratio 
IS the full 
whole es- 
fficient to 



James Shaw against Peter Le 


Fpp December 9. 

v« .u ^""'^M- This is an action to reco- '»^l'c owner ami 
ver the amount of freight claimed for the "'"***''' °^ * '<■«««• 
carnage of a cargo of potatoes, turnips and "'^y^««^«»«'/'«iK««t 

Se a- P? • ^ "^''^ ^^^ »0 written contract been destroyed in 

ot aftreightment ; Init the bill of ladin«- ex- consequence of ha- 
pressed the quantity of goods receive^! on j!Z^''" «^*l"'**^ 

«pon their- delivery at St. John's. Q„a^re, if fre bIu 

ine vessel sailed about the beginning of *^'*" ^^ recov.-rt.d 

iNoyember, and had favourable weather, and '**^ "*;«'-« ^^ich 

a short passage of five days; but upon her K Xr^r 

arrival here, a f^re^dejicienc^ has been found c^.^:;! '^AZ'lfe 

in ine potatoes and turnips, on delivery, '"^"'t '« '•« *«/»rc/<, 

lliis dehciency constitutes tlie ground of t*'''^'^'' throuuu 

resistance to the payment of frei"-ht Th^ " "^"' ^^ *'•« 

defendant contend^ tha"t he iT'^ot lia^S: K^^r Te^t 

101 freight, until all the goods which were t^*'. »M,t the 

snipped are delivered ; and the plaintiff '**'"^ '" ^'"*=f' '< 

tttatntaininfr iltnt- ..ii ii. . _ _ i ■ '~^. «as inclosed are 

can freiulit be d^- 
niaiidcd for ihrni? 
It IS ipmarkablu 
tliat this case 
septus not to have 

maintaining that all the goods have in rea- i i i 

lf;or f r"'^ l-tUiatinclT^quence IjltlTa'.^t 

ot some of the potatoes being in ajrosfed ''^e q,.es io„ ,», 

condition when they were shipped on board. """ 
there has been a great destruction among 
tliem, as well as a diminution in bulk. 

^several witnesses have been examined on — 

the ipart of the plaintiff; and from the whole •"'"'e'v"' '"y dt'^ct 

of their testimony, it appears that part of the r-'".'-'?"*;?" '" **" 

ZT a"„d .r'"'"^ p"?" '•™"' '" » f™^''^ tti'rw: 

state, and the greatest loss among the pofa- India trade the 

loes was in the situation on board the vt ^^ '""'»'''* •» payable 

sel where these frosted potatoes were so put "r" ^''^ n«ant''.r 

onboard. It is proved that when they to^ok ItcT istri:;": 

/ar Zl wjl\L,v ''''«« P"»''yFOthet,cany. B„t the usage of a particu. 
it, caJnol dltcrlr ^ P°'"'' ^ '^.^ ?''?""'**^ **» circumstances pcAliar to 
reJi^TTJnThJhV ^"""'■' ^''''^P^' ^'"'""* «'°«« investigation of the 


'fil7. heat from the hold of the vmsd 



nvas converted into wet, n-id ........... 

V, ith the rest, so as to lea- en ihe wbol 


.e co.u- 



tiguoas moss with corrupt ior. 

It has been attt^npted to show that tKe 
dtck of the vessel wa^ insecure; that there 
was no lining round the main-mast, below 
whicli the gr Hk'St loss happened. But this 
IB successfully refused I r the testiiaonv of 
the mat \ who iwears ihere were we<K'es 
which fitted tight, an! that dunaage was 
also put round the iixast tc protect the 
cargo; and a witness, who was casually 
ca!i3dm Court, proves that the vessel is 
perfectly tight. 

It is evident, that a great loss has hap- 
pened ; and it is, I think, pvoved that a great 
part of this loss has been occasioned by the 
frosted conditfon in whicii the potatoes were 
originally shipped. But how shall we ac- 
count for the loss in the turnips, which ge- 
nerally arrived in good order? 
_ Much reliance is placed upon this fact by 
the defendant, who argues from it that there 
lias been a great embezzlement of the caro-o. 
Supposing this presumption to be partly 
true, yet 1 think there are circumstances in 
this case, which go a great way to relieve 
the responsibility of the owners. 

The cargo was shipped to be delivered in 
St. John's. During the time they were in the 
exclusive charge of the master of the vessel 
the owner was unquestionably bound fo^ 
their safe-keeping. 

But it appears in evidence, that the pota- 
toes were retailed on bo- ; that a clerk 
of the consignee was se- 
them; and that er-^n th 
assisted in selling a- ; .raving the money 
for small quantities. .rely it was not part 
01 the ongmal contracf i h . i the vessel should 

\ board to sell 
master and mate 


e whole cou- 

iovv that iha 
; that there 
mast, below 
d. But this 
tesljraony of 
ere wedges 
uiiaage was 
protect the 
as casually 
le vessel is 

)ss has hap- 
that a great 
>ned by the 
►taloes were 
all we ac- 
', which ge- 

this fact by 
it that there 
fthe cargo, 
be partly 
nstances ia 
( to relieve 

elivered in 
were in the 
the vessel, 
bound for 

t the pota- 
lat a clerk 
•ard to sell 
' and mate 
the money 
is not part 
sel should 







be use<I in this way. Besides, the consignee 

sent his own clerk on board to retail the 

carj^o, an<l must be considered as thereby 

taking a delivery of the cargo and removing ». 

the responsibility of the owner, since the ^^ Mbssubier, 

authority over, and disposal of, the cargo 

were placed iu other hands than those of his 


Upon the whole, T think the defence can- 
not be sustained ; but as I am unwilling to 
release the owner altogether from his en- 
gagement, as to the delivery of the goods 
not proved to be destroyed, 1 shall hold him 
liable for the deficiency of the turnips. 

Judgment for the plaintiff, £100, subject 
to the deduction of the value of five bushels 
of turnips. 

Patrick Walsh against Samuel G, 

J. HE plaintiff had been a Servant to the 
defendant, and the present action arose up- 
on some charges which had been made by 
the defendant in the account furnished by 
him to the plaintiff. The sum in dispute 
amounted to £9 tis, 6d.; and included the 
following litigated items, viz,, pair of boots, 
£2 5s. Od. ; summer expenses And extra 
provisions, £'Z I8s. 6d.; five days' neglect, 
£l Us. Od. ; and time not served, £3 0*. Od. 

The Court considered the evidence addu- 
ced by the defendant in support of the two 
first charges, quite satisfactory ; but in the 
absence of sufficient proof to establish the 
propriety of the two other charges, the Chief 
Justice gave a judgment for the plaintiff up- 
on them ; at the same time intimating to the 
defendant, that as the transaction had takca 


December 10th» 

Where the dis' 
tance of the settle* 
ment in which the 
cause of actioa 
arosA, rendered it 
difficult for the 
parly whose ac'^ 
count was disputed 
to support it by 
evidence, the Ci, 
Justice gave jndg<« 
ment for the sums 
in controversy; 
but at the samo 
time granted tha 
defendant permis* 
sion to bring aa 
action to recover 
back the money 
which, under the 
present bearings 
of the case, he 
held him liable to 





place at a settlement remote from St. Jolm*s» 
he would permit him to bring an action to 
recover back the money now adjudged to 
the plaintiff. ,f he should think proper to do 

/VemSer lOtk, 

Declaration of 
insolvency super- 
seded, at the pray- 
er of the creditors 
tAd iiuolTeat. 



Memorial and Order for superseding 
iHOMAs Lane's Insolvency. 

CPN this day a memorial was presented 
and read, of which the following is a copy : 

To the Hon. Francis Torbes, Esq, 
Chief Justice, ^c. ^c. 

The Memorial of William Haynes and 
John Thomson, trustees to the insolvent 
estate of Thos. Lane, of Ragged Harbour, 

Showeth :— 

Thaton the 16th day of November, 1816» 
lAomas Lane, of Ragged Harbour, planter, 
was declared msolvent in che Stirrogate 
Court, and your memorialists were appoint- 
ed trustees. Thatyour memorialistsapDear 
to be the sole creditors, as no other claim 
has been made. That an agreement, with 
jw^hich your memorialists are satisfied, has 

Tif® rP'^JP*?^ by the said Thomas Lane for 
the liquidation of his debts. 

We, your memorialists, for ourselves, 
therefore, with the consent, and at the de- 
«re, of the said Thomas Lane, request your 
Honour to order the said declaration of in- 
solvency to be supereeded. 

J. Thomson, y 
H. SiMMs, for i Trustees, 
yv, Haynes, 3 






n St. Jolin*s» 
an action to 
adjudged to 
Jroper to do 


3 presented 
J is a copy : 

)RBEs, Esq, 

4YNES and 
le insolvent 
!d Harbour, 

nber, 1816, 
iir, planter, 
re appoint- 
lists appear 
ther claim 
[pent, with 
isfied, has 
IS Lane for 


at the de- 

(juest your 

tion of in- 


J qwest stated m the within memorial. 

I w 


quest stated m the within memorial. 

Thomas Lane, his x mark. 

Catalina, 8th November, 1817. 

John Jack, > .,,. 
Arthur Neil, J VVitnesses. 

Let the insolvency be superseded. 

F. Forbes, C. J. 

Lank's InsoIrtDcy 

Winter against Winter and Others, 

Af^^a W"" ^''^'^'' *^ '•^^®^®»" *^e snm of 
/«/ * ?i^- ^^^°^ °°® y^^*''s annuity due by 
John Winter to his father, James Winter 
on the 20th day of November lasf; and t; 
the reguar payment of which, Mr Nicholas 
Gill and the late Stephen Knight iZZ 

jITJ^T^ ?T^'' ^y a bond, dated St. 
John s, 2d October, 1806. 

wLT^^^T^ ?^*^^ insolvency oUohn 
frtnter, the Cowr* directed the judgment 
given against the same parties, on th? 2o3i 
November last, to be amended, and to be 
entered up against these defendants gene! 

Ifeemler tlth. 

The judgment 
which was gir'Tj 
in Ibis aoiioo jj> 
Ihe 20»h ult. (sea 
ante p. 65) amend- 
ed, in consequence 
©f Ihe principal 
obligor in the bond 
bavin;; been de« 
dared insolvent. 



J)ecenibvi 'iOth, 

The offifls of 
Marshal of the 
Vice Admiralty if 
not in the grant of 
the Crown in its 
regnl Gbsracler ; 
nad cannot, tbere'« 
tore, be in the ap- 
I'oiatment of the 
Governor, unless 
he holds • civil 
commission as 
Vice Admiral. — 
Nor can (he title of 
an individual ap< 
pointed to this of' 
hce by the Go- 
vernor, merely in 
virtue of hin poorer 
as the King's rr* 
presentative, de- 
rive any support 
from the recogni- 
tion of him in that 
capacity by the 
Lords of Appeal 
& the High C( i 
of Delegates, v , 
the other band, a 
person appointed 
to this of ce b»' 
an admiralty pa. 
tent is to be con. 
sidered as holding 
that office, not 
from the period of 
his assuming the 
duties of it, bui 
from the time of 
its enrolment in 
the Registrar's 
Office in Loudon. 

JAMES Stewart, Esq. against George 


J HE defendant had acted for a lonjj se- 
ries of yeir " rshal of the Vice Admi- 
ralty Coarcin this island, under a commis- 
sion from the CJovernor ; but the plaintift' 
had been appointed to the same office by 
an admiralty patent, dated so far back as the 
9th August, 1808, and now sought, by the 
present action, to recover the amount of the 
fees and emoluments received by the de- 
fendant, during the time in which the plain- 
tiff contends that the office vested in him by 
the patent. The particular facts of the case, 
as establish icd by the evidence, and the rules 
■of law applicable to the several |>oints grow- 
ing out of those facts, are clearly and dis- 
tinctly stated in the following luminoi s ind 
instructive charge to the jury : — 

The Chief Justice. The present is an 
action for money had and received, being 
the amount of certain fees and emoluments 
received by the defendant, as Marshal of the 
Vice Adm ilty of this Island, during the 
time, as the plaintiff contends, whei. the 
office was vested in him. 

The case ^ a mixed one of law and fact, 
and resolves itself into two s^enerr.l ht ids of 
inquiry :— FirFt fromii^Aa^ time ia th< plain- 
tiff legally eii.itled to receive hn fees? And, 
second wl t proportion is he equuably 
entitled n aive?— The lirst is a qntstion 
of law *or the consideration of the Court; 
and the second is a question of fact for the 
Jury. Upon the first point: it appears that 
m 1796, a commission was given by the then 
Governor to defendant, as Marshal of the 
Vice Admiralty; in virtue of which he en- 
tered upon his office, and continued in it 



I George 

a long se- 
ice Atlmi- 
a commis- 
le plaintifi' 
le office by 
back as the 
ht, by the 
ount of the 
by the de- 
i the plain- 
I in him by 
)f the case, 
id the rules 
>ints grow- 
and dis- 
oinoiu and 

sent is an 
ved, being 
•shal of the 
luring the 
whet, the 

and fact, 
I ht ids of 

th* plain- 
3es? And, 

a qutstion 
he Court ; 
act for the 
pears that 
y the then 
hal of the 
:h he en- 
nued in it 



iiiitil 1813 during^yhich period, and after the 
date of the plaintiff's patent, the defendant 
I rcceiv'cd monitions from the lords of appeal 
»l and the delegates, addressing him by ,ame' 

as the Marshal of the Vice Admiralty o 
Newfoundland; and the validity of his an. 
pomtrnont was never doubted by himself, or 
disputed by others, until he was unexpected- 
ly superseded by the Lords of the Admi- 

f hp^if T ^jsappointr. at from the Governor, 
the defendant has rested much of his case 
and the Governor, as the King's representa- 
tive IS undoubtedly invested with many 
great prerogatives of the crown, amongst 

^Z}. \t' i^'' of filling up sichvaca^n 
offices within his government as may lie in 
the grant of the Crown. But it is to^be ol " 
served that this particular appointment is 
incidental to the office of the Lord High 
Admiral, which has been so severed from 
th Crown, by the grant of that great 
01 e, that nothing (a), it has been said? but 
the authority of Parliament, can re-unile 
IJT* v"^"' therefore, the office of Maishul 
of the Vice Admiralty is not regularly in the 
grant of the crown, in its re,;nl character, so 

rnent of the Crown's representative as such • 
and no civil commission appears to havC 
been granted to the Governor here, as Vice 
Admiral. Still less can any title be derived 
from the recognition of the Lords of Appeal, 
or the High Court of Delegates; for as the 
office was not within their dir, a appoint- 
ment, so It could not derive any force from 
any indirect ackno^^ ledgment by ihem In 
point of strict /. -«^ title, the defendant ap- 
pears never to have been duly appointed to 

(a) 6 Hub. A. It. yya 







i! I 






the office of Maisliat He was, however, 
an officer, de facto, created by the Governor, 
under the necessity of the case ; and, until 
he was removed by a competent power, his 
acts, as to all others, were lawful, and he 
was entitled to his fees. 

The patent of the plaintiff, appointing him 
to the office in question, bears date as far 
back as the year 1808; but from some un- 
explained circumstances of delay, it is 
stated that he did not receive it until 
the year 1815. In the mean time, how- 
ever, having seen his name affixed to the 
office in the Court Calendar for 1812, he 
applied to the Judge of the Vice Admiralty 
to be admitted to his office, but was refused, 
as he had no commission to show. On the 
21st May, 1813, he received an official ex- 
emplification of his patent; and on the 3d 
June following, took the usual oaths, and 
entered upon his office. 

In this stage of the transaction, a circum- 
stance took place which, for the purpose of 
clearing the case, it may be necessary to ex- 
plain. It was the application of the plaintiff 
to be allowed the sum of for the fees 

received^uponthe custody of some American 
prizes, after the arrival of his commission, 
and the decision of the Judge of the Vice 
Amiralty thereupon ; which was followed 
by an appeal, and, subsequently, an appli- 
cation to the Lords of the Admiralty for 
redress. Upon looking into the statement 
of what took place in the Vice Admiralty,, 
it appears to me to be rather expressive of 
the opinion of tan Judge, upon a point of 
convenience, in preserving entire the custody 
of certain vessels then under adjudication, 
than decretal upon t^ subject-matter in dis- 
pute. The Jud^e must have been aware 
that the case, being one of disputed right 



nd, until 
3wer, his 
and he 

iting him 
e as far 
some un- 
y, it is 

it until 
le, how- 
d to the 
1812, he 

On the 
icial ex- 
i the 3d 
ths, and 

rpose of 
py to ex- 
the fees 
he Vice 
n appli- 
alty for 
ssive of 
point of 
r in dis- 
i right 


between ttro subjects, was not within hii 
jurisdiction, and therefore refused to disturb 
he possession ofthe thing in dispute. Bv 
the laws of England, an office is a freehobb 
governed by the law of the and ; an the 
mere circumstance of its functions being per! 
formed in the Vice Admiralty, conveys no 
more authority to that {h) Court to deter^ 
inme the right to the officVor its fees, mn 
U can have to decide upon the title or ro" 
nts of an estate. * 

,-oTV5^-"*'' *'' the plaintiflTs title: his patent 
18 dated in 1808, but he did not claim his 

until the following year. Admitting him to 

Jeged. that he was not apprized of his ap- 
pomtment before, 1 proceed in the chain Sf 
inquiry to ascertain from what time his an- 
pomtment legally commenced, so as to eL 

books 'th /'ffi •' ^'^' ^'^' ^'^' «^'d in the 
books, that officers m a Court who have no 

other creation but by admission, are not ot 

ficers until they are admitted ind sworn • 

but that an officer by grant ofthe King is 

w^^^T™*''^'^'''>^' '''^'^«"t being admit! 
ted and (r/) sworn. In a case in some re* 
epects like the present, it .s saidTy tlfe 
highest authority, that investiture does not 
make an officer when he is created by pa- 
tent, but he is an officer presently before he 

casToT;! '\^ '^''' '^^^^^"^» ^«« used in te 
case of the !:»ergeant-ut-arms of the House 

ot Commons, a great executive officer, re- 
?oSf" V^^'^^'^'-'^ty of appointment and 
nnilTi ^ of mvestiiure which may be sup. 
posed essential to the appointment of Ma?- 

S T "^^ ». 1^ V- ^ <^- 3, cap. 27, aoc. U, 
id) craigh v, Norfolk, 1 Mod. 123. 






l f *i nj m i w 





;l, i 

shal of the Vice Admiralty. There is, how-< 
ever, a point of difl'erence between the cases 
referred to and the present ; and it is this, — 
that in those cases it is to be presumed that 
the patentees were in possession of their 
title-deeds of office, which was not the case 
in this ; but the patent in question had been 
enrolled at the Admiralty, the proper office 
for that purpose, and received the only de- 
livery which the situation of the plaintiif 
Mould allow — a delivery to the hands of his 
attorney. The failure in its transmission 
was a circumstance which could not affect 
the legality of the title; it waa 2i defect of 
proof of title, not a defect of title itself; the 
enrolment in the registrar's office, in Lon- 
don, forms the true epocha of the plaintiff's 
legal right to his office. It is true that the 
Judge of the Admiralty here, refused to 
confide the process of his Court to a person 
who was not prepared to show the authority 
nnder which he claimed it; and it is clear, 
1 think, that the Judge was justifiable in 
using his discretion in the case. But that 
circumstance would not disturb the right of 
the plaintiff, although it subjected him to 
the loss of such a portion of the profits of 
his office as the person performing its du- 
ties would be entitled to ; beyond this, it 
could convey no right to the defendant. 
Jf he chose to continue in the office after he 
was apprized that the title was in another, 
he continued nnder a liability of accounting- 
even for the profits of it to the proprietor. — ■ 
Assuming, therefore, as we are bound in le- 
gal strictness to hold, that the plaintiff was, 
dejure, the Marshal of the Vice Admiralty 
from the delivery of his appointment in 1 800, 
we arrive at the gist of the action,-— ;/ro»t 
what time is he entitled to an accof'^i of his 
fees. By analogy to the claim in equity for 



•e is, how-* 
I the cases 
: is this, — • 
[imed that 
1 of their 
t the case 

had been 
>per office 

only de- 
e plaintiif 
lids of his 
not affect 
a defect of 
itself; the 
, in Lon- 
! that the 
efused to 
:> a person 
I authority 
t is clear, 
;ti liable in 

But that 
e right of 
ed him to 

profits of 
ig its du- 
el this, it 
:e after he 
\ another, 
und in le- 
intiff was, 
it in 1 SCO, 
an,-— from 
v"^ioJ his 
equity for 


the meme profits {e) of an estate, the plaintiff 

IfnH? k"*"^"* /"li ^"/ P^''*'^'^ °f the profits 
until he affected the defendant with the 

knowledge of his appointment. No direct 

proof has been brought as to the time; but 

It 18 probable that it must have been kAown 

t"*^ J^fu^"!?'?^ ''^^"^ ^^^ time that the 
Judge of the Admiralty laid the case before 
the Governor, and was desired to continue 
the defendant m office.-.[See Exhibits, 3, 

4, O, O.J 

The second point in the case depends 

!J?*? IS H^V\ "^^^^ ^""^ ^^« customaAf fees 
of the Marshal ? and ^^\i2.t proportion of them 
should be allowed to the defendant for the 
trouble, the expenses, and the responsibilitv 
/le incurred ? *^ ' 

.J^^c^u""^^^^ ^^^ charged upon the cus.= 
tody of the droit ships, at the rate of seven 
shillings and sixpence per day ; and that 
charge was allowed by the Court. : - 
.cannot, as has been contended; be 
regarded as a gratuity, flowing from the 
bounty of the admiral and th^ captors, m 
The custody of all prizes by the practice of 
the colonies, is in the Court; an(i the Court 
exercises its authority by the hanr^sofits 
omcer. ihe circumstance of capture before 
declaration of war against a new enemy, 
makes no difference. Until war is declared 
the court is the guardian of neutrality, and 
has the right, as well as it is bound by diitv 
to see that the rights of nations are not inl 
•vaded. It has been decided at Halifax, by 
an emment Judge of the Admiralty, upon 
the authority of a case which had gone befbre 
the Lords of Appeal, (§•) that the Marshal is 
entitled to seven shilli ^s and sixpence, cu&- 

<e) Preced in Ch «n-10 ; and «ee 4 Brown. Ml 
(p SlewMt, A. U.. case of Herkimfr, p. 149-40. 














tody-fee, as well as to a poundage upon 
sales ; these, therefore, appear to be lawful 
and customary fees. In determining the 
quantummeruit oHhe defendant, the amount 
of fees, &c. received by him appears to have 
been as stated in the account produced, 
£3,355 3s. 7d, But it must be taken into 
consideration, that the office has been exer- 
cised by the defendant, during a long perioc 
■when its profits could not ha\e repaid the 
trouble of holding it : and that during the 
period of its becoming profitable, it became 
equally onerous and responsible. 

^ Had a single vessel or cargo been lost or 
injured through neglect, it would have swept 
away the wholeof the profits of the Marshal ; 
and the plaintiff would not, in all probability, 
have come forward to share the loss, as he 
has done to divide the profits. The expen- 
ses of the office must also have been consi- 
derable ; indeed, taking every thing into 
consideration, the fees and emoluments of 
Marshal of the Vice Admiralty, are not 
much more than a fair remuneration for the 
trouble, the expense, and the responsibility 
of the office. But upon this part of the case, 
the jury have heard the evidence, and it is for 
them to compute the proportion of the fees 
and emoluments to which the plaintiff may 
be entitled. 

The Jury, after a very long retirement, 
returned a verdict for the plaintiff £1250. 

i n 

jDecemh^ 23rf, 

On this day the parties were heard, by 
their attornies, for and agaiost a new trial, 
and the Court took lime to consider the ap- 


id age upon 
3 be lawful 
tnining the 
:he amount 

taken into 
been exer- 
repaid the 
during the 

it became 

een lost or 
[lave swept 
3 Marshal; 
loss, as he 
'he expen- 
een consi- 
Lhing into 
luments of 
, are not 
on for the 
if the case, 
md it is for 
f the fees 
intiff may 


leard, by 
lew trial, 
er the ap- 


James Stewart, Esq, against George 
HuTCHiNGs, Esq. 

f.#N this day the Court refused to grant a 
new trial, when the Chief Justice delivered 
nis judgment as follows :— 

Considering the responsibility of the per- 
son officiating as Marshal, charged at his 
personal risk, with the custody of a large 
amount of property; considering that the 
poundage upon sales is scarcely equal to the 
per centage on ordinary auction sales ; con- 
sidermg, above all, the great laches of the 
pamtiff m sleeping for four years upon a 
title, which if he be legally entitled to hdld, 
iie was conscientiously bound to claim, and 
not to make a convenience of a person who 
thought he held by a perfect title; consi- 
dering these things, I own, I am not quite 
satisfied with the amount of the verdict/and 
think it too high. 

However, as I was apprized at the time 
the business came before the Court in ano- 
ther form, that whichever party failed here 
would appeal to the King in Conncil, I 
think 1 shall best answer the purposes of 
justice byre", ing the new trial and recom- 
mending an«jjpeal. 

TheTule of law which holds ico officer bv 
grant from the Crown to be in immediately 
by his patent, will receive, if it be hard, 
that mitigated interpretation which majrr 
meei. the true ends of juFlice. ,;;? 

Here 1 can only say, ita lex SGaipTA. 
est; andif.there be any Isgal consequences? 
between the grantors of the office in quesT/ 
tion; and the patentee, arising from the Ion© 
non,usp,tr of the office, the advisers of thi 
crown will best know U\j to deal withi 
such a circumstance. 
New trial refused. , ,1 ; 



December 24/A, 

The Court will 
not grant a new 
trial, even where 
the sum given by 
the verdict seems 
to be too high, if 
there are circum* 
stances attending^' 
the case which 
render it desirably 
that it should bo 
taken before the 
King in Council 
by appeal. 




Daniel Roberts, Esq. appellant. 


Andrew Simpson, Esq. respondent. 

High damages 
assessed by a jury, 
are not a ground 
for reversing the 
judgment of aa 
iuferiiDr Gouit* 


HIS was an appeal from the Surrogate 
Court. It appeared by the transcript of the 
record, that the defendant, who was captain 
of H. M. S. Hydra, had caused the plaintiff', 
who was a merchant residing in this town, 
to be seized by his boat's crew, and on- 
Teyed on board His Majesty's ship, where 
he had been detained for some time. 
The defence was, that the plaintift' had in- 
terfered with the defendant while in the act 
of abating a nuisance, in pursuance of an or- 
der of the Governor. 

On this day, Chancey, on the part of the 
appellant, and iSimms, on the part of the res- 
pondent, severally addressed the Court ; and 
the Chiqf Justice then delivered the following 
judgment :— 

The Court has diligently examined every 
part of the evidence in this case, and listened 
to the arguments of the parties, to extract, if 
possible, some point of law npon which to 
found its interference. 

It is well known from the construction of 
the Surrogate Conrta in this Island, that they 
have not the benefit of that legal precision, 
in sending cases to the consideration of a 
Jury, which only professional men could 
give them ; and that law and fact are some- 
times alike committed to their decision. 
Whenever a case has been submitted to this 
Court, in which the determination was inti- 
mately connected with the right understand- 
ing of the law, 1 hare always been anxious 
to correct any errors, or misapprehensions^ 
by reversing the judgment of the Surrogate 



■ipt of the 
IS captain 
! plaintiff, 
his town, 
and ;on- 
p, where 
le time, 
had in- 
n the act 
of an or- 

art of the 
)urt ; and 

led every 
i listened 
extract, if 
which to 

action of 
that they 
tion of a 
3n could 
re some- 
id to this 
ivas inti- 
> anxious 


Court, with leave to bring a new action, as 
the party may be advised. 

In the case before me I can discover no- 
thmg upon which to interpose. The appel- 
lant was sent by his Excellencv the Go- 
vernor to execute a particular order; and 
If he had confined himself to the execution 
of the Governor's commands by abating the 
nuisance complained of, or ordering others 
to abate it ; and if, while in the execution 
of his duty he had been forcibly interrupted, 
and had resisted such interruption by oppo- 
smg force to force, the act for which he has 
been sued might have been justified. But, 
unfortunately, the appellant mixed himself in 
a personal quarrel, first by words, and after- 
wards by force, with the respondent, accom- 
panied by what the law terms false impri- 
sonment. ^ 

'^hese facts are not denied ; but it is con- 
tended that the damages were dispropor- 
tionate to the injury ;— perhaps tiiey were. 
iBut has this court a constitutional right to 
disturb the verdict of a jury, upon a matter 
exclusively within their province to determine '* 

The 491h of the King gives this Court a 
summary jurisdiction in civil causes, which 
are, however, to be tried, as nearly as may 
be, according to the practice pursued at 
home. It gives the right of trial by jury to 
the suitor, without limitation or control. 1 
hold It as clear that, in the declaration of this 
constitution'^^ rx^^ht of trial, the suitor in this 
Court IS r.v6iUrii to the benefit of a ver- 
dict, m as h\h, free, and ample a manner 
M he wou,.. I.e in any Court in England. 
i>ow what have Courts in England held 
upon verdicts in cases of personal injury^— 
that they are purely for the consideration of 
the jury; as fellow-raen, having common 
leelmgs, but, at the same time, common in- 












terests with the parties to the cause, they 

are sure, on the one hand, not to compromise 

an injury ; and, on the other, not to oppress 

hf their verdict. This verdict has given 

high damages ; but 1 carinot, by comparing 

this with cases where new trials have been 

refused at home, call them "excessive and 

outrageous," so as to warrant a new trial. 

The legal remedy for the appellant would 

have been to have applied to the Surrogate 

for a new trial, upon the ground of excessive 

damages. Looking at the case and the law 

under which 1 sit, 1 do not think that I can 

constitutionally reverse a judgment which 

is not erroneous in law, and merely because 

the damages are higher than I should have 

been disposed to allow had 1 been on the 


Judgment affirmed. 

-> «i 

In the matter of Robertson & Mortimer's 
. Insolvency. 

December 2ith. By the Chief Justice ;— 

Decision of the 
Chief Justice on a 
qupstioQ voluntari- 
ly siihmi tied to him 
by the parties in- 
terested on a point 
connected with a 
claim upon an in- 
8olvi3ut estate. 

Question has been voluntarily referred 

to the decision of the Court, by the trustees 
and creditors of this estate, as to the right of 
William, M<try, and Elizabeth Mortimer , to 
rank as creditors upon the said estate. Jt 
appears that Robertson Sf Mortimer were 
declared insolvent in the Surrogate Gonrt in 
March last.— That William, Mary, and Eli^ 
zabeth MorHmer, of the familv of one of the 
firm, lent £1,006 to the house, upon bond, 
with interest; and that Gladstone aho lent 
the sum of £1,000 in the same way. Now 
the* trustees -contend; that this money was- 
lent* . as ; capital, upon the show i of whidi 



the general creditors were induced to trust 
and give credit to the house ; but they 
distinctly admit, that before the credit 
was given, the house of Robertson &- Mor- 
timer was formed, and the principal credi- 
tor had promised his support. Upon the 
above facts, as stated, I see nb just reason 
why tbejjreditors, William, Mary, Und EH- 
zabeth Mortimer, should not come in as ge- 
neral creditors upon the insolvent estate. 



;Kjjii }( 

no a: 

la the io»M«r of 



In the matter of Thomas Kough & Co's 

It is ordered by the Couri, that a copy of 
the memorial presented by ^^4^00/and 
Haynes, creditors to the insOl vents, be served 
on the trustees to the estate of the said in- 
solvents ; and that the said trustees do, on 
or before the 7th mstant, deliver into Court 
a statement of what has been done by them 
as trustees aforesaid ; showing the particu- 
lars of monies and effects received by them 
--of the manner iu which the same have 
been disposed of~of the claim's on the said 
estate, and the nature of them— with the 
amount of the unappropriated effects belous- 
ing to the said estate; so that a distribution 
thereof may be made without delay : or that 
they on the said 7th instant, shew cause 
why they refuse to comply with this order. 

' Jawmry 3d, 1818, 

Order to trus- 
tees of an insol- 
Tent estate, to de> 
liver into Court an 
account of (heir 




Applioation from 
the morlgtgees of 
premises, pledged 
lo tbem by a party 
vbohftd since been 
declared insolrcnt, 
to hare (hem sold 
in satisfaclioii of 
the balaoce of the 
debts still due to the 
mortgagees by the 
the Chief Justice's 
order thereon. 

In the matter of John Winter's insolvency. 

\fN this day, Messrs. Atiwood ^ Haynes 
presented a memorial to the Court, of which 
the following is a copy ,*— 

To the Hon. Francis Forbes, Esq.f 
Chief Justice. 

The Memorial of Henry Simms, on behalf 
of AttwoodSc Haynes, 

Humbly Showeth :— 

That Mr. John Winter, of St, John's, on 
the 4th January, 1815, executed to the said 
Attwood 6f Haynes the mortgage, herewith 
laid before your Honour, of premises situated 
near the Ordnance Yard, as security for the 
sum of £784 0*. Qd. then due from hira, pay- 
able with interest on the 20th of November 

That there is still due to the said Attwood 
Sf Haynes^ on the said mortgage, the sum of 
£133 18*. 5rf., with interest thereon from 
the 14th of January last, agreeably with 
Mr. Winter's note of hand of that date. 

That the said mortgagor having been 
lately declared insolvent in your honourable 
Court, your memorialist respectfully solicits 
the authority of your Honour to sell, by pub- 
lic auction, the interest of the said «/oA» 
Winter in the premises on which the said 
mortgage has been given, or a sufficient part 
thereof, to satisfy the claim of the said 
mortgagees on the same.— Your memorial- 
ist, as in duty bound, will ever pray, &c. kc^ 


Henry Simms. 

St. John's. 2d Janiiarv. 1AIA. 



r Haynea 
of vrhich 

m behalf 

)hn's, on 
the said 
Y for the 
ici, pay- 


e sum of 
on from 
)Iy with 

»g been 
by pub- 
did John 
the safii 
ent part 
be said 
8cc. &c* 



Upon which memorial his Honour the 
Chief Justice made the following order:— 

Jf the fact of the amount of balance claim- 
ed be not disputed, the trustees may go on 
to sell the insolvent's interest in the lease, 
and out of the proceeds must first pay the 
amount of principal and interest to the 
mortgagees ; and if there he a surplus, apply 
it as part of the general fund; or, if there be 
a deficiency, to the credit qf the mortgagees, 
against the general fund as a general credits 

(Signed) F. Forbes, C. J. 



Ja the matter of 

John Winter's 


Trustees of Dalton & Ryan against * ' . 

Attwood & Haynes. '^"""^''^ "** 

This case embraces several interesting a cS^'^h?* 
points, all of which are distinctly stated and proves his debt ge- 
examined in the following decree upon it. nerally against an 

Per Curiam. The primary objection made '"?^'^*"* «sta*8' 
by the pjaintiffs- agent, namely, that Messrs. SM ^S".; 
attwood dr Haynes, in proving their balance securities in his \ 
upon oath against the estate of the insol- possession for the 
vents, without mentioning the securities satisfaction of it, 
they held, amounted to a waver of such se- t'ssa^Vt^fe^ 
curities, cannot be sustamed. It is the his right tb the be- 
practice in England, when a creditor appears "efi* «' such secu^ 
to prove his debts, to require him to give ud 'L*'^^l ^^' *•*«* 
his securities to the assignees ; but iS doing ZdlJa^f^J^l 
so he does not wave his priority of claim tTs^iven" inTo": 
whicu he has upon such securities to the temptation of in- 
extentof his demand; but they are delivered ^°^^^^^y* with a 
up to the assignees, who are fo dispose of p Jerlnoe" are*'' 

f , vou/,yettbatapre« 

lerence given even on the very verge of insolvency, in virtue of a previoug 
d5fre««e«« is not so; 3d, that a party who advances money to another, 
through the medium of an agent no! uwi ally employe* for such purposes by 
the supposed borrower, does it at ijs own risk and peril; 4lh, that the pri- 
▼atetransaations between the individ »? partners of two firms, cannot be 
"" "■' V. |n«'».'PO':a»«d with the por*".mAip accounts batwetn those firms, io 
nt m iiis iuSwiVcMwy of eilber oi them. 





Trustees of 



Attwood & 



InZ'fli ""^,^1' i^'^ P'-^^eeds, f^Tst, in pay- 
men of the debt for which they were pledg. 

h L /^ f"''' "'• '^ l''*^»'e »>e any, to the 
s^ch"^!''-^""'^- Jf there is a defidency, 
such deficiency is ranked as a general cre- 
d against the estate. Here wc have no 

Tn f ■? T^ "^'^^^^'^ *^ the same effect, 
and it may be expedient to make one : but 
m the mean time, if a creditor have a secu- 
nty, he must account for it before he will be 
admitted to Gom<2 in as a general eredkor.— 

nn 1 nff^? ?"*' ^'^^^""^ ^^^« delivered in 
;i?« . r^r ""'] ^^'^ '2th of December, and 
the credit for the order on Marten does not 
appear to have been entered until the follow- 
fS month, when the principal part was re- 
covered ; and the credit for the cutter Ac- 
iives fish 18^ not given until several month.f 
TJ\: ?° ."'^^ ^' ^''^ ^''"^ the account was 
h!1 ?:. 'f '''^^ ."°' ^"^^»^ whether the or- 

ILn A ^u P^'^^"*" *''^ *'^«'* ^'•"ve safe; 
^hen and where only they could be consi- 

«at.^llf' payments. These circumstances 

tinl In ^''T"?^ ^Z^^'^ defendants' omit- 

of wl ?i v^K^ ^"""^^^ ^^ ^'^«^« securities, 
ot which, if they were otherwise legally en- 

prive them^""' s"ch omission would not de- 

But it is contended, they were given witli 
a view to a preference, and therefore void 
1 certainly do admit that, although the 

iaws, yet that the principle of equal justice 
growing out of them, as interpreted by the 
Courts at home furnish us with thiiest 
2Z 5^, ^^«*'«*^f decision; and amongst 
m w % ?? "'' *^«»^tation in saying, that a 
nianifest mtention to prefer one creditor to 
T^:^A\ ^^ *he contemplation of insolvency, 
would be considered avoiding any payment 
made under such circumstances. For such 

it, ill pay-' 
ire pledgM 
ny, to the 
neral cre- 
have no 
lie effect, 
one ; but 
e a secii" 
le will be 
editor. — 
I'ered in 
iber, and 
does not 
e folio w- 
t was re- 
nter Ac- 
? mont/i.f 
•unt was 
r the or- 
i^e safe; 
5 consi- 
s' omit- 
ally en- 
not de- 
en with 
3 void. 
?h the 
by the 
ie besi 
that a 
itor to 
* such 


an u in England, although not an act of 
bankniptcy, is regard .d as contrary to the 
equity of the statutes, and void. 

Jnthe two payments in this case, one was 
an assignment of part of a cargo ot tish the 
evening on which the attachment whicii led 
to the insolvency was served d there 
was an order given to the defer s to re- 
vive money due to the firm o Dalton & 
Myan a few days after the writ, and only 
^e day before the insolvency was declared 
J his was certainly pressing very close ; and 
It sucli a case were now to occur, I should 
Ijave no difficulty iu setting it aside. But 1 
must remember that these things were done 
when It was supposed they might be lawful- 
Jy done, under the misconstruction which 
the Courts gave to the 49th Geo. 3d, cap. 271 
indeed the agent himself admits that he 
gave the order, supposing the defendants had 
a preferable claim as current creditors, and 
that It could make no difference. The or- 
der having been given to the defendants to 
receive money, without any express direc- 
tion as to the appropriation of it, and the 
makers being at the time indebted to the 
defendants, I do not see how 1 can consider 
Sjnerwise than as a payment to them. 
VVith respect to the assignment of the Ac^ 
lives cargo, it appears to have been con- 
ducted m a very obscure and ambiguous 
way; but it is proved that at the time of the 
assignment, a certain quantity of fish was 
due from Daltoti ^ Ryan to replace other fish 
which had been borrowed ; that it had been 
JaithJuUy promised to be returned from the 
cargo then expected on hodLvdihe Haddock s 
and that it was this very vessels cargo, after- 
wards partly laden on board the Active, which 
was assigned in it would seem, 
with ^previous promise, and certaialy a very 



Trustee 8 of 










125 i 1.4 








jS 1653 East Main Street 

.sss r^ Rodiester, NY 14609 USA 

^j^B'A Phone: 716/482-0300 

.^S-.SS Fax; 716/238-5989 

e 1993, Apptiad Image, Inc , AH Right* R«Mtv*d 












eamegt requisition. ABsumingthisasthe fact. 
T„. .- r Tu 'i^ appears to me to have been, from 

PawokTrtak i^'/'^'^Tu" ^^/^"'^^' '^^ »°'«» produced, 
1.ALT0K&RTAK wd even the admission of the agent himself 

Attwood* r® ***. '"« *oan offish, and taking it in con- 
Hatnbs. junction with the promise of early payment 

fr^'J'®/®*J"*®*''**»» *® «en<* the Haddock to 
thede/endanfswharf, which was only refused 
on account of the delay, it brings this case 
within the principle laid down by Lord 
Jtfan^tf/rf m aarman if Fisher (Cowper, 
125), and 18 a preference in virtue of a previa 
ous agreement without fraud. 

Having disposed of these two main ob. 
sections as raised by the agent for the trus- 
tees, I shall be brief with the other parts of 
the case. The sums charged by the plain- 
tiffs for monies delivered Casev, 1 should be 
afraid to sanction. It is like offering a 
bounty to deception ; and, in point of fact, it 
liag not appeared that AUwood &• Haynea 
ever authorised any delivery of money to 
Ifsey, m their name. It was demanded 
also, not as payment, for Attwood d- OameB 
Vfete then in debt to Valton ^Rwm, but as 
a loan. To have refused the money, would 
at the utmost have been only prudent ; but 
to pay it to a person not usually employed 
for such purposes, was to exnose them- 
selves to imposition, and to hold out tempt, 
ation to fraud in others. 
The sum of £240, which appears to have 
^ iv®, priyate account between Haynes 
and JJaiton, cannot, in any point of view 
be admitted into their partnership accounts! 
The bill for £200 was drawn to Valton, i>er- 
sonally, for the benefit of his son, and was 
a gift from Baynes. As a matter of conve- 
nience to partners, this mode of adjusting 
their separate debts may be sanctioned 
amongst tbv mselves, but it must be by som« 



s the fact, 
een, from 
tt himielf 
it in con- 
!tddoek to 
y refused 
■his case 
by Lord 

nain ob« 
the trus- 
parts of 
le plain- 
liouid be 
fering a 
>f fact, it 

oney to 

» but aa 
» vonld 
lii but 
t them- 


io have 

m, per- 
ad was 



agreement or admission of the other party, 181» 

And it appears, that /i^«n, one of the part- ^ _j- ^ Ay_' 

ners, expressly desired the entry in the day, Tru.ii«« of 

back to be expunged, as soon as he saw it; Dauon* Ryah 

and that it was not brought into joint ac- ** 

count, until newrjiveyeara after it occurred, VaTn?.* 

I must, therefore, reject that item in the 
defendant's acco^jint. 

Hequla Generalis, 

iTistbis day ordered, that whenever a 
creditor of an insolvent estate shall appear 
to prove his debt, he shall be required to 
state the amount of any pledge or other se- 
curity he may have in his possession, or 
power, for sqch debt, and the circumstances 
under which he holds the same ; in order 
that the trustees may be enabled to see that 
such pledge, or security, is disposed of to 
the best advantage, and duly applied, in the 
first instance, to the discharge of such debt ; 
and if there be any surplus, that the same 
be applied to the general fund of the insol- 
vent estate ; or if there be a deficiency, that 
such deficiency rank as a general credit 
against the same estate, 

(Signed) f. PoRpEs, C J, 

Jtmuarjf 'Jth, 

In the n^atter of Dalton & Rvan's 


_ 'N this d^, Mr. John Ryan^ on the part 
of Messrs. Timothy Ryan, Patrick Morris, 
Thonuu Meagherjtm. and Jamts Mortimer. 
trustees to the said estate, produced in 
Court a stateinent of the claims against the 

S amft- aa #hov onnAa.. K«> «k_ i 1.- .^^i. . 

Januaiy 9lh, 

A ratabb^^lg^ 
tribulioa among 
«li III* eraditun, 
without ihe letst 
preference lo any 
class of them, or- 
dered by the Court, 
in a case where ihe 
insolvents were 
proved Ic be genc' 
rai thopkefper$t 



In Iht mittar of 
Dalton & U». 
AN'8 InaolTcocv. 


iniolvents ; and prayed mat the Court 
would take the same into consideration, and 
order the said trustees to make a distribu^ 
tion of the realised funds belonging to the 
sold estate, to be made according to Jaw, to 
the several claimants thereon, without delay, 
agreeably to the said statement. 

The Couri having taken the same into 
consideration, and having ascertained that 
JJalton if Mt^an were general shopkeepers^ 
without any immediate or particular con- 
nection with the fishery, ordered, that the 
trustees to the sa'd estate should nroceed 
to make a dividend of the funds which have 
been realised, ratably, amongst the creditors 
of the said estate, in conformity with the 
decision of the Court in the cases of Cm- 
nmgham. Bell ^ Co, and Hunters & Co, 
against the trustees of Crawford & Co, 
Against which order, Mt. Robert Job, as 
the attorney oi John & Robert Gladstone, of 
l^iverpool, En-Jnnd, gave notice of an ap- 
peal to Hh ajesty in council; on the 
ground, thai n.-y considered their claim en- 
titled to priority, as being a current 5ii«»/v, 
m pursuance of the 49th of the King, c. 27. 

Mxparte, Graham Little in the matter of 
JtMmny i4#A. DooLiNG & Kelly's Insolvency. 

J^tS^ 3??R CoBUM. This is .„ application i.> 

to lb* provisions of *"® l^ourt, at the prayer of Graham Little. 

•■ act of Parlit- f Order the distribution of the effects of the 

meot, Is dio(«. insolvents, Dooling & Kelly, agreeably to 

mefToid. lav. The Court has already decided that 

the petitioner is a creditor of that estate, 

and with a view of ascertaining the extent 

of his claim, ordered the production of the 

accounts of the estate, and the proceedings 


be Court 

ition, and 


ing to the 

iaw, to 
»ut delay, 

ame into 
ined that 
liar con- 
that the 
lich have 
wilh the 
IS of Cu" 
s & Co, 

1 & Co. 
Jobf as 

^stonCt of 
an ap- 
on the 


, c. 27. 

atter of 

ition to 
I of the 
biy to 
id that 
of the 


<>f the trustees in the business of distributin'* 
it. " 

It appears that, soon after the insolrencv, 
a general meeting of the creditors was cal!- 
ed, at which it was resolved, amongst otiier 
thmgs, that the stock in trade of the insol- 
vuits should be divided into lots of ten 
pounds value, to be ascertained agreeably 
to the cost of the articles, as stated in the 
stock-book ot the insolvents, and distributed 
amongst the creditors for the current year 
of the msolvency by ballot, so as to make 
a dividend, as nearly as might be, often 
shillings m the pound. This extraordinary 
dividend was accordingly made; and the 
trustees, with a ^reat deal of diligence it 
must be admitted, proceeded to realize the 
remaining effects of DooHng & Kellu ; and 
by the 1st January following were prepared 
tor a final distribution. They accordin-lv 
called a second meeting of the creditors.^at 
which It was resolved, that as all the current 
creoitors had not received at the rate of 
ten shillings in the pound, such as had not 
should receive a special dividend of five 
shtlhngs tn money, which was deemed equal 
to ten shillmgs mgoods, so as to place tliera 
upon a par with their co-creditors for the 
year 1815. And it was further resolved, that 
the demand of the petitioner should rank as 
a debt of 1814, but not as a current supplu or 
preferable claim. The residue of the undis. 

Jo oi^"^ ^^^""^^ ^^■^'^ «^'^*^ to amount to 
A3,340, and it was agreed to submit the 
proceedings of the meeting for the approba. 
tion of the Surrogate, 

In reviewing these proceedings, J cannot 
refram from observing, that they exhibit so 
extraordinary a departure, not only from 
/aw, but also from antecedent practice is 
»»!«»«> vacTO, luttt, « IS Qiffieuii to conceive 




Graham Littli 

in the ivaUpr of 



Graham Littli 

in III* caattsr oi 
DooLiNo.^ Kbl- 
Lt's Intulfency* 



liow they could linve been fallen into ; and 
certainly impossible for this Court to justify 

When the tmstces of Doolinff ^ Kelltf 
were appointed, they became ministerial offi^ 
cers of the Court. It was their duty to sell 
the estate and distribute it according to law; 
and if they felt any doubt, to have applied to 
the Court for further directions* But, in- 
stead of pursuing so plain a path of duty, 
they convened a general meetmg of the cre- 
ditors, and, under the sanction of a majority 
of voices, dispensed with the provisions of 
the law, and resolved away the rights of a 
creditor, standing upon a claim which one 
might have supposed peculiarly entitled to 
consideration— a claim to participate in 
those very goods which he had sold fo the 
insolvents, and which were the subject of 
his demand. 

It is stated that, under the altered circum- 
stances of the times, this mode of sale was 
most beneficial to the creditors. Perhaps 
it might have been ; but surely this was 
not a sufficient reason to justify the breaking 
through an act of Parliament. 

It appears that the remaining eflfects have 
been realized, and amount to the sum of 
^3340. They are the effects of persons not 
in any manner engaged in the fisheries, but 
mere shopkeepers, and general retailers; 
and, as such, 1 shall in conformity with the 
late decision of the Court, direct the undis- 
tributed effects to be divided equally 
amongst all the creators, share and share 
a/tA:e— crediting such as have received shares 
in specie, with the amount of such shares, 
agreeably to the rate at which they were 
distributed by lot. I do not see how I can 
determine otherwise ; for it may be impose 
Bible, at this day. to ascertain the exact ya- 


nto; and 
to justify 

if Kelhf 
terial offi-' 
ity to sell 
gto law; 
ipniied to 

Bnt, m* 

of duty, 
f the cre- 

f'isions of 
i{^bta of a 
'hich one 
iititled to 
ipate in 
>ld lo the 
abject of 

I circnm- 
sale was 
this was 

;ct8 have 
! sum of 
sons not 
ries, but 
retailers ; 
with the 
le undis- 
nd share 
id shares 
ey were 
»w I can 
e impos* 

XAQt va- 



liie of these shares, at the time they were 

In the matter of Dooling & Kellv's 



'N this day, Simms, on the part of the 
trustees to the estate of Dooling ^ Kelly, 
gave notice of an appeal from the judgment 
of the Court, respecting the distribution of 
the remaining effects now in the hands of 
the trustees. 

Jn answer to which notice, Lilly, on the 
part of the creditors generally, contended 
that tlie trustees cannot prosecute, or enter, 
any appeal against the wish of the general 

The Chief Justice obBetved, that it seem- 
ed to him that the trustees, as such, could 
not, under these circumstances, appeal ; but 
that any creditors who felt themselves ag- 
grieved, or injured, by the decree, might db 
so. As the case, however, was new, he 
should give it further consideration ; and, in 
the meanwhile, would direct a stay of pro- 
ceedings, with an order that the time to be 
allowed for giving security to prosecute the 
appeal should be computed from the day on 
which he should deliver his final decision up- 
on this case, 

January l&ih. 

The right of tru(i< 
teei to appeal ,cono 
Irary lo ihe winh 
of one claas of 
creditors on an in< 
solvent estate, 
doubted by the 


will rgnliaue"*! 

ilittriflk«f lb* vea> 

ilimg Am htttn 
.•d«a«««r*|ali«Nr lo 




TETEa Henderson i^atful BBOwWk 

iloYLES & Co. 

»P«rty,thn giwiis J. HIS was an nclion to recover the sum of 
II «.»..„„. .. 1 ,00 ,2,. (uf, for goods sold. The defence 
was, that the goods in question had never 
been regularly delivered to the defendants. 
d er Curiam, This is an action to reco^ 
▼er the sum of £\0Q 12#. 6rf., being the value 
of eight catiks of molasses which were con- 
sumed in the fire of the 7th November last, 
and which the plaintiffcontends had passed 
to the defendants by a complete sale. On 
the part of the defendants^ it is insisted that 
the contract was still open ; that as the price 
Was to depend upon the gtiaging, which the 
plaintiff was to do before it was delivered, 
all hajd not been done to perfect the sale ; 
and ^that«. consequently, the entire property 
m the molassea had not passed to the de- 
fendaiftts, so as to render tliem liable to the 
loss. To this pleia, tbe plaintiff rejoins that 
the tnolastes : had been giiaged only a 
f^ dqjfg h^e, npon being delivered to 
«m ; and that the interval wos too short to 
ihafe varied > the quantities of the casks. 
.And he has. produced a certificate, stating 
the f|uantitjeft as be received them, and ac- 
condingio. which,: be must [be supposed to 
have re-sold them to defendants. But this 
argument is certainly not tenable. What- 
ever the quantities might have been, as be- 
tween the plaintiff and his vendor, they are 
not necessarily alike as between the plaintiff' 
and the defendants. It is impossible to 
admit this as an argument ; and, besides, 
the certificate produced merely shows the 
gross quantity of nine casks, one of which 
had been sold to another purchaser; and. 



he sum of 
e defence 
ia<l never 
I to reco-* 
the value 
vere con- 
nbcr lastt 
id passed 
ale. On 
sted that 
the price 
ehicii the 
the sale ; 
> the de- 
le to the 
oins that 

only a 
?ered to 
short to 
I casks. 
» stating 
and ac- 
Dsed to 
But this 


, as be- 

hey are 


iible to 


•ws the 

' which 

r; and» 
» I I 

/us uuu 


mot been so gua«?ed, as to be exactly ascer- 
tained. The plaintiH's own witness alHo 
states that he was directed to guuge the 
molasscH before he delivered it ; so that alt 
had not been done^ on tlie part of the seller^ 
which ought to have been uone» and, there* 
fore, 1 cannot distinguish this case from 
those of Hanson t. Meyer ^ 6 £aAt» 0t4> and 
Rugg V. MiMti, 11 £ast,2ia 

The plaintiff; in order to have fixed the 
liability of the defendants^ should bare 
guaged the casks, and sent notice thervof to 
the defendants, or sent a bill of parcels witb 
the price, which, being all that remained for 
him to do, would have relieted Mid from the 
risk, and thrown it npon the defendants. 
His allowing tlie motasses to remain in his 
store, was an act of accommodation, not on- 
usual in trade; but that cuxrumstance can- 
not be considered as a delivery to the de- 
fendants, in shorty the plauitiff had not 
done all which, by the contract, it was ne- 
cessary to do, and, therefore, ho cannol 
recove«,>— Judgment for defenda ^« 

John DAMBRtMi ogmnst John D^nscomb 

& Co. 


»Y this actioo, Ae plamtxfT sought to 
charge the defendants witb a liability to pay 
for the repaurs of certain premises of which 
the defendants had been in possession as the 
assignees of a lease, but had parted with that 
possession some time before the action was 
commenced against iuem. 

Per Curtani.-— There is no point of law 
clearer than that the assignee of a lease is 
liable for the covenants contained in the 
leas^ no ipoger ihaa he continues in the 


Bao«N. Boiua 

Jammnf 19th, 

• leas* •!» ctnly 
liabk »o loog as 
th«y cotttiBOfr m 
poue$$iom of the 
demised prentispa, 
by Iba lata Proftf 
aditioa ef Black, 
atooe'a ConuoeiiU 
•ries, Tol.2. p.327, 
upon tha qucitinA 
railed in this caM.| 






If' ': 

possession of the lease. Mc is a constructivo 
tenant of the landlord, by the fact of pos- 
session ; and dnriii}? the continuance of that 
DuNscoMB&Co. possession, he is liable for the rent, as well 
as running covenants. But as he is only 
liable for possession, so with possession he 
loses his^liability. 

The plaintiff's own witness has proved, 
that a few months before the defendant as- 
signed his interest, the house was in good 
order. The presumption may be, that the 
short interval of time, during which the 
house remained unoccupied, would not al- 
low of the great dilapidations which are 
now said to exist. 

Indeed, it has been said by the plaintiff's 
wife, several times, in Court, that it was the 
assignees of the defendant, who did the in- 
junr. In point of fact, therefore, the plain- 
tin has not been able to prove that there was 
any breach of covenant during the period 
the defendant held the premises ; and the 
presumption is not strong enough— or rather 
the fact that the assignees of the defendant 
did the mischief, will not entitle the plaintiff 
to a judgment. 

There was a misapprehension of the law 
by the plaintiff, who should have received 
the keys when they were offered him. On 
every ground, therefore, the defendant ia 
entitled to a judgment in his favour. 


t of po8- 
Q of that 
ssion he 



idaiit a8> 
in good 
that the 
lich the 
I not al- 
bich are 

: was the 
I the in- 
le plain- 
here was 
9 period 
ind the 
or rather 

the law 
m. Oq 
idant ia 


James Murphy, appellant, 
Samuel Kouom, respondent. 

HIS was an appeal from a judgment 
given in the Surrogate Court. The reHpond- 
ent had instituted an action there u.i^Hlnst 
the appellant, for uttering and circulatiog 
certain false and scandalous words, tending 
to injure the character of the respondent, 
and had laid his damages at £2,000. The 
case was submitted to a special jury, who 
gave the plaintiff below a verdict for two 
hundred pounds; and a judgment for that 
sum was afterwards entered in his favour. 
After hearing the parties at considerable 
length, the Court reversed the judgment of 
the Surrogate Court ; as it appeared that 
the appellant had disclosed to the respond- 
ent the names of the persons whom he had 
heard utter the words spoken, previously to 
the commencement of the action.* 

* In the record of this case, the ground for reverting Uie 
Judgmontof the Court beluw, is cert«inly slated, as in the 
forego! ', ifort, to be, that ibe defepdanl beluw liad Uis« 
closed :m name of the author of the slander lo the plain, 
tiff before tkt aetiam tetu brought ; but 1 very much doubt 
thia being a true statement oi the facts upo'n which Mr. 
Forbea rested his decision ; as I apprehend that the plain- 
tiff had a Bu£Boient cause of action, unless the defendant 
named th« author of tha slander ot the very moment he re-> 
peated U, I am awart, indeed, that this point has never 
received a dire^ adjmiKeatum in Westminster Hall, as it 
has never been directly raised in any of the cases that hava 
been argued there ; but in Lord Nwthampton'a case (12 
Rep. 234) it is expressly said, that " if J. 8. publish tb^ 
" ho halh heard J. W. say that J. C. was a Ihief, apd the 
truth be so, be may justify." And the reason assinned 
is, that tha author named may be in such low estimation 
that J. C. might have suffered no injury from his slander. 
Now this reason clearly does not apply when the name of 
the aolhor of the slander ie disclosed at a period $ubte- 
quemt to the publieatum, but pnor fo the commencement 
oj the action; because in that case ii has, (ota lime, been 


The diflcloiura 
of liiQ iiBiiie uf iho 
rnginal nuiliur of n 
MliiiKlrroiiH rc|iort 
prfoiovniy to Iho 
commcntrment uf 
tlie acliiiu, held to 
bu a bar lo tha 


A principal rc« 
■iding abroad l» 
not litblo lo pay 
for tb« board and 
lodginf of bia 
■leot in tbiscoun* 
tr^, vnliis he pro. 
luiatt or under* 
Ukca to do sob 


Jamei Smithfrs & Co. uirainst Thomas 
Williams & Co. 

HE only ouestion io issue bcttrccn tlio 
parties was. whether llie plaintiffs were lia- 
ble to pay lor the board and lodging of their 
agent; the defendants having charged them 
«*>r the same, and retained a large sfim of 
naonev in their hands on that account. A 
• jury found, specially. " that James ISmithers 
jun, as agent to James iSmWters A- Co..]oascd 
and boarded at the expense of Thcmas 
W^i/Z/Oin* 4. Co., from the 19th Jan., 1813, 
to the 26th July following ; and that thi 
charge of four guineas per week for that 
time was not an exorbitant charge ;'*. and 
after having heard both parties upon 
tbe effect of this verdict, each party con- 
tending that the judgment ought to be in 
their favour. 

The Chief Justice said : The verdict ha- 
ving been special, turned the case upon one 
mam point, viz.. Is a principal, who sends 

•irea1.t«d m tU credit of th, defends, ..d mw ibM 

haTo produoad if iba disclosura bad b«ea made ai tb. 

in«ly. .1 la«l by Scarhit, a^Juendo, i. W^kr, 

EUmbmough^nA Mr. Jaetica JU Blaii, thai " m ofdaTlo 
enable a defendaat to ju.iify elanderoa. word.. uLm 
beerjay, be m«.t dl«,loM it the time o/SSL'X 
i?i^ ••'• -me of , be pereo. from wbo^be CS it/' 
It i».y be material lo add^, tbat ib^ •baefralioM aVa 
confined 10 ore/ alaader; a.d Ibat il i« .Si .r«ZlI3 
qa..tionwbelb.f a defendant caD. by ba»n. a^S II 
original autbar at lb. lima of pTblicJioS? ju'e'tifJX pi^ 

(3 JSa«t, 420). They era evidenyv not acta ehud^ 

S« A!*'i ••""•'ir^'y. «>••« •taWi.bed in r4ar^ S 
lerrj™. r'"^ ** 'I* ^•"'."" »' •°°'« ^niiaeSili^r 



Ten the 
I'ere lia- 
of their 
'U them 
sum of 
int. A 
, 1813, 
liat the 
)r that 
; "' anc| 
y con- 
9 be in 

ict ha- 

on one 


my ibM 
ould not 
» a( tb« 
*lMtk r. 

order t» 
!■• upo* 
% <A# 
»rd It." 
oDi ar» 
Ded lb* 
It rulss 
sard to 






tan ngcnt to this island to transact his husi- 
nesj.. hable for the tHtrsmai c.ncNses of 
such agent, except he un.lertake to pay 
Buch personal expenses' Surely such a prin- 
ciple 18 not sustainaba-. The defendant 
himself, after the departure o( James Smitk- 
m,jun. acted as the agent of the plaintiffs, 
and collected various bums of money, for 
the full anriount of which he credited them 
in 1814 and 1816. Consetiuently, the money 
he received he did receive as the monies of 
James Auut/ters ^ Co., and not as James 
iSmitkers,)Hn., and charged his commission 
accordmgly upon the sums he received. Jt 
IS not attemnted to be shown what was the 
nature of the agreement between James 
atmitfier.t.jun. and his principal, or what re- 
trard or commission he was to receive. Nor 
18 It pretended that the defendants wore 
pripr to the relation between the principals 
! ^"^Irl*^ **"** *''*^''" "««•'>' 'n Wewfound^ 

T* J ''r"^ ''*"* ^^^"^ "«^'"'nf? '" the shape 
of probf of any guarantee or express pro- 
mise by the plaintiffs to pay the defendants 
tiny private expenses which their agent 
might incur. The case, then, is resolved hito 
this simple question;— is a principal who 
employs an agent abroad to transact his bu- 
siness, generally, liable for the mere per* 
sonal and private expenses of such apent 
without any promise to iU person with 
whom they were contracted to pay them' I 
must own I never heard of such a principle 
before. The law of England is the law of 
Newfoundland ; and I cannot sanction such 
a departure from it, in a country where so 
much business is conducted by agents, I 
shall, therefore, give the plaintiffs a judgment 
for i^lll 12*., which is the sum charged by 
defendants for the board and lodging of thfl 
agent: •■"- * ' " -- - - 



Smith IMA: Co. 


Williams & Cot 

special jury. 

allow the costs of a 


1018. Against which judgment, the defendant* 

gave notice of an appeal to his Majesty in 

January 23(/. 

Thn Court will 
not set aside a deed 
made in conformity 
with the interprela' 
lion whieh ihn 
Courts had given 
ID an Act of Par* 
iiament, allhongh 
that construction 
appears to ba er« 

in the matter of trust of Godfrey's Estate. 

^^FFER having heard ttie several parties, 
viz., the trustees under the deed of trust, the 
petitioners for the distribution under such 
deed, and John Ryan on behalf of certain 
English creditors (not parties to the deed). 

The Chief Justice observed, that the deed 
appeared to have been executed at a time 
when all the parlies to it were supposed to 
have preferable claims ; and that, therefore, 
as the Court had refused to re -open accounts 
settled, or payments made under such in- 
terpretation of the law by the Courts, he 
did not feel himself at liberty to set it aside. 
It was a conveyance to trustees for the cur- 
rent creditors; and the deed conveyed the 
beneacial right to the properly assigned ni 
as full a manner as it was then possible io 
tlo. "the right was conveyed, although it 
was to be enjoyed hereafter, and this case 
is like one of an actual distribution, which 
the Court has refused to disturb, until the 
decision of the King in Council can be had. 

Note.— In the above case the effects of Godfrey 
were actually delivered over to the power aod disposal 
of the trustees, and were oonaequently sold for the benefit 
o( the trust. 


Stuart & Rennie against David Walsh. 

The circumstances attending this case, 

counteracting the , ,j^^ jjp,«nrtant nnestions arislne OUt of 

?6a'g.°o.3:o.!.;! ihe fiicts oFil. Vre'distiBctiy stated, and 

A fishery may be 
carried on upon 
$har€s, without 
counteracting Ibe 


ajesty in 

8 Estate. 

.1 parties, 
trust, the 
der sucli 
f certain 
e deed), 
the deed 
at a time 
3|)08ed to 
. accounts 
r such in- 
ourts, he 
t it aside. 
r the cnr- 
I'eyed the 
signed in 
ossible to 
though it 
this case 
on, "which 
, until the 
n be had. 


lod dispoial 
»r the benefit 

3 Walsh, 

this case, 
ine out of 
;ated, and 






carefully investigated, in the following judg- 
ment:— ' 

Per Curiam. This is an action brought Stuarts dcRsir- 
by the plaintifis, the suppliers of a voyage to 
the Labrador, against the defendant, under 
the following circumstances: — In the spring 
of last year the defendant was out of em- 
ployment, and two persons, named Merri' 
gan and Jarvisi applied to the plaintiffs to 
advance them supplies for an intended voy- 
age to the Labrador, and were refused.-^ 
These men nplied to other persons for em- 
ployment, o.d, beingrefused, again returned 
to plaintiffs, who agreed to supply them, but 
on one express condition— that they should 
ship their servants upon shares, and not for 
wages. This was agreed to; and the de- 
fend ant was engaged by Merrigan ^ Jarvis, 
and signed a shipping paper by which he 
was to receive "the sum of twenty^one 
"pounds, if the voyage would afford it;'* 
but it was understood that the supplies taken 
from Stuarts 4* Rennie, with freight, fcc; 
were to be paid Jirst. The voyage was un- 
productive, and fell short of the supplies 
furnished in nearly the sum of one hundred 
pounds. The first question which presents 
Itself is—whether this agreement between 
Merrigan^r Jarvis and the defendant be net 
contrary to law ? and, consequently^ whether 
the plaintiffs can recover in an action evi- 
dently founded upon such an agreement ? 

By the 15th of the King, every person who 
employs any fisherman for the purposes of 
the fishery in Newfoundland, must enter in- 
to a written agreement with him, stating the 
wages he is to receive and the term he is to 
serve. But the evils complained of in the 
act, and the remedy which this provision 

wording of the clause of the act, do not en* 




Stuarts & H^pim 





able this Court to pronounce broadly tliat 
no other contract can subsist in the fishery 
than that mentioned and regulated by the 
act. it is notorious that a great part of the 
fishery in this island is carried on upon 
shares, or, in other <words, by a number of 
men who form a partnership, and are to re- 
ceive the profits of the voyage in lieu of 
wages. It were impossible to calculate the 
mischief which might ensue if 1 were to pro- 
nounce such an association unlawful. It is 
a matter which requires legislative interfe- 
rence ; but I cannot hastily substitute a de> 
cision for an enactment, and remedy the 
want of ^ law ; and it must be determined, 
upon the threshold of this case, whether or 
not theire can be a fishery voyage upon 

I shall hold that a fishery may be carried 
on U(>on shares, without contravening the 
provisions of the 16th of the King, although 
a great part of the act is evidently impracti- 
cable and obsolete. 

The next question which arises is, how 
far the defendant is liable to the plaintiffs 
under the express terms of his undertaking? 

The plaintiffs contend he is liable to the 
fnU extent of the proceeds of the voyage, 
until all the supplies are paid ; but the de 4 
fendant maintains that he is only liable for 
the supplies immediately furnished to him- 
self. The account produced is, by name, 
agamat Merri^an ^ Jarvis, as the planters 
or masters ; but many articles appear to 
have been supplied for purposes independ- 
cnt of, or not inseparably connected with, 
the voyage of which the defendant was a 
shareman. Such articles must be abstract- 
ed from the account ; and for the supplies 
actually furnished, and the expenses actual- 
1/ cotttracted, ioi the particular voyage of 



ladly that 
lie Hslipry 
ed by the 
•art of the 
on upon 
tumber of 
are to re- 
in lieu of 
ml ate the 
re to pro- 
ill, it is 
e interfe- 
:ute a de- 
nied y the 
hether or 
ige upon 

»e carried 
ening the 

s is, how 
ble to the 
t voyage, 
it the de < 
liable for 

io him- 
by name, 

ppear to 
ted with, 
int was a 
8 actual- 
oyage of 



last summer, and no other, the defendant is 
liable to the extent of his interest in the 
proceeds of the voyage. 



IVIartin Titzgerald against George 

Jatiuttty 9lit, 

I eiprtM AgtM* 

Jl HE extent of the defendant's liability, AiuratyMODot 
under a guarantee given by him for the pav- J? *•'■'«•'* •»•>••><* 
ment of rent bv a tenant of the plaintiff. »"• "p"" •■'••- 
formed the only point in dispute between 
the parties in this case : the plaintiff contend- 
ing that the security was general far whate- 
ver rent might become due during the existence 
of the term ; and the defendant insisting that 
it was strictly confined to the rent ofthepre-^ 
misesfor one year. 

The Chitf Justice SBidf that as the guaran- 
tee, which was given before the date of the 
lease, contained a promise to pay rent, and 
not rents; and as there was nothing in it 
which referred to the tease in question, either 
by word or circumstance, he could not con- 
sider it as guaranteeing more than 9l yearns 
rent. That the covenant for re-entry, m de^ 
fault of the payment of a year's rent, mate- 
rially strengthened this construction ; as the 
defendant might have founded upon this 
clause an expectation that he could not be 
responsible for more than one year's rent. — 
That a surety cannot be charged beyond his 
express agreement ; and that it would be 
giving improper encouragement to that 
loose and slovenly manner of doing business 
with which this transaction had evidently 
been conducted, to extend this guarantee 
one iota beyond its precise words. 
Judgknent/>ro defendenU, ^ 




If two firms, 
eoDsiitiogr entirely 
of the $ame metn* 
bere, carry on </»• 
tinct braocbee of 
trade, and both 
beoome ineolTent, 
the properly aod 
effect* uf the fine 
in Newfound Und 
■ball be dieirtbuted 
by trustavs, ap- 
pointed by tba 
credilora of thst 
firm, and noder 
the law of Ibia 


In Appeal—Jn the matter of Crawfobd 
& Go's, insolvency. 

jhLT the hearing of this cause, in appeal, 
an objection was made, on the part of the 
appellants, to re-opening those particular 
Claims which had been admitted by the 
Surrogates, inasmuch as no appeal had been 
duly entered from the decision of the Court 
below ; but the Court over-ruled the objec- 
tion, observing that the Surrogates had, in 
the first instance, refused to allow any ap- 
peal whatever, and, according to the letter 
of the a(^, the objecting parties themselves 
were not regularly before this Court. It 
would not be proper to be over-nice upon 
matters of form, particularly where so little 
had been observed ; and, as no substantial 
right was injured, or impeded, the Court 
would, under the circumstances, consider 
the whole case as re-opened. 

The parties were then respectively beard, 
first, against and in support of the insol- 
vency as declared in this island ; and, after- 
wards, upon the claims of the creditors in 
Scotland to share in the dividend in New* 
foundland. And, at the close of the argu- 
ment, the Chief Justice pronounced the 
following decree :•— 

This matter comes before the Supreme 
Court by appeal from the decision of the 
Surrogates , upon the claim of certain credit- 
ors in Scotland, to a dividend of the effects 
of Crawford Sf Co. under the insolvency 
which has been declared in this island. As 
the propriety of the claims must, in a great 
measure, depend upon the facts of the case, 
and as many of the leading facts are before 
the Court merely upon the admission of 
parties, it may be necessary to take a short 


I appeal, 
irt of the 

by the 
lad been 
be Court 
le objec- 
's had, in 

any ap- 
:he letter 
ourt. It 
ice upon 
I so little 
e Court 

y heard, 
be insol* 
d, after- 
ditors in 
in New* 
tie argu* 
ced the 

n of the 
Q credit- 
e effects 
id. As 
1 a great 
be case, 
e before 
i&ion of 
a short 



view of the state of the case before I enter 1818. 

upon its merits. ^ , , ^ 

Jt appears that the house of yo/in Crati;- Inappenl, in ih« 
ford 6c Co. was an ancient and respectable "'•*^' "^ Cbaw- 
establishment in trade at Port Cjlasgow. J°"? * ^"*■• 
which branched out into two collateral con- ^""'"•'"'y' 
cems, — one at Lisbon, under the firm of 
Joseph Tucker Crawford ^ Co.t and the 
other at this island, under the firm of Craw- 
ford^ Co. The respective firms in Scotland 
and in this island consisted of the same part- 
ners, but the concerns were kept entirely 
distinct, and in all their dealings with /each 
other, regular accounts were opened, and the 
same conduct in every respect pursued, as if 
the proprietors bad been distinct persons. 

In the course of their trade, Crawford ^ 
Co, exported fish and oil from Newfound- 
land to different ports in Europe, the pro- 
ceeds of which^ as is the practice of the 
fishery, found their way to the bands of 
their correspondents, John Crawford ^ Co., 
who, consequently, became thefund*holders 
of the house in Newfoundland, The former 
house was declared bankrupt in the month 
of February, 1815, and the latter became 
insolvent in April following. 

Upon these facts of the case, a preliminary 
question has been raised, whether this 
Court is not bound to recognize the laws of 
Scotland (a), and the sequestration which 
issued under them, and to supersede the iu^ 
solvency which was declared in this Island 
after such sequestration, upon the general 
principle that personal property is hdd to he 
situate in the country where the insolvent is 
domiciled^ and to be governed by the laws of 
that country as completely as if locally 

i/A Sa« Hall. f!«MW «tn B»»A< f .at* AA1 ani n*">ai nStaJ 


'~ ~'^ -XM%Jy,HlMlfe^,«, i Hl L IXVimtJtt m 




la apiMal, in th* 
FORD & Co'i. 


1>laced within it? This is certainlv a very 
arge— a splendid proposition. But regarded 
as a rule of international justice, it may be 
allowable to say intentata nitet; for it 
is still in its infancy, guarded by cautious 
qualiacations, and untried in all its remote 
and possible consequences. IVhat those 
consequences might be, as applied to this 
country, where a peculiar law of distribu- 
tion prevails, is rather a matter of specula- 
tive, than an essential, inquiry at present. 
But it would not be difficult to frame a case 
fr0m the materials before the Court, and a 
ease of very probable occurrence, in which 
the application of the principle, in the gene- 
ral form contended for, would be attended 
with a degree of inconvenience, such as 
might call in question its very existence as 
a practicable rule of justice. Suppose, for 
instance, a person to have engaged exten- 
sively in the fisheries in this island, where 
he holds his stock, his counting-house, in 
short, the local habitation of his trade ; that 
in the course of years he acquires opulence ; 
and leaving his capital and concerns under the 
management of agents, retires to England, 
where he happens to embark in some inde- 
pendent speculations, which bring him with- 
m the pale of the bankrupt laws at home, 
and induce a failure in his engagements in 
this island. Shall the whole of those en- 
gagements, in all their various branches and 
intertex«.ures, be transferred to the adjust- 
ment of assignees, acting under the direc- 
tion of authorities sitting on the other side 
of the Atlantic, at a distance from the place 
where the engageinents were contracted, 
where the body of creditors are resident, 
and from which all the evidence in the case 
of dispute must be drawn ? Or should the 
BuOrief course be adopted, of proceeding 



ly a very 

may be 
T ; for it 
i remote 
at those 
I to this 
le a case 
t, and a 
a which 
such as 
tence as 
lose, for 
1 exten- 
I, where 
mse, in 
e; that 
ulence ; 
le inde- 
m with" 
t home, 
3ents in 
ose eii- 
ties and 

ler side 
e place 
le case 
lid the 



under an insolvency in this island? It is 1818. 

held by the Prize Courts {b), nor will the - _■ . ,_ ' 
doctrine be entitled to the less weight be- In appeal, in ib« 
cause it is drawn from Courts whose pecn- mmtwror Cbaw- 
liar province it is to determine the largest ?°"!* * ^*''*' 
c|uestions of international law, that trade *'"'*^'""'y- 
itself may acc^uire a domicile, and impress 
It upon the individual independently of mere 
personal residence : and if it may in relation 
to the state, there seems no just reason why 
»J should not in relation to individuals. 
Might not the property in trade, which is 
visibly fixed and subject to local liabilities, 
form an exception to the general principle, 
that personal property has no locality?— 
Whatever may be the true solution of such a 
question, should it occur, 1 am not at pre- 
sent called upon, by the case before me, to 
determine it; for there is a circumstance in 
this case which, according to my apprehen* 
sion, takes it out of the range of the princi- 
ple even in its most general form, and it is 

this— that CVflfi^tfrd^' Co. were a distinct 

and separate Jirm in this island, at the time 

of their insolvency. It is not dqpied that 

they carried on an original and extensive 

trade in Newfoundland under a distinct 

name ; and there seems no reason why a 

different style should have been assumed, 

if it were not intended to hold out to the 

world that the firms were distinct. But it 

IS contended that the two houses in reality 

consitited of the same partners, and were, 

therefore, in fact, one and the same. It often 

happens in England (e) that the same per- 
sons are engaged in subordinate partner- 
ships, which, with reference to their separate 

creditors, are considered as distinct; and, a 

(b) 1 Rob. A, R. 15, 

(e) Expte. Jobni,'cook B. IkSsa. 


U .' 


In •pfMal. in th« 
matter of Craw- 
ford & Go's, 



fortiori, they should be so considered, where 
the establishments are in different countries, 
where the respective creditors cannot possi- 
bly have the means of knowing what may 
be the remote relations of the parties, or the 
aspect of any collateral concern, and must, 
therefore, be presumed to deal with each 
firm upon the faith of its own trade and ap- 
parent property ; and in such cases, the ef< 
fectB in possession of each house at the time 
of insolvency are considered as distinct 
property, and liable to be divided, in the 
first place, amongst the creditors of sur;h 
house (d). Now if the two firms of the 
Craw/o^ds were distinct, and the property 
of each firm liable to its separate creditors, 
how can the effects of the house at JSt. 
John's pass under an assignment of the 
effects of the house at Port Glasgow, for 
the benefit of the creditors of the latter, the 
creditors of another house? Il is true, in- 
deed, that in cased of conflicting commis- 
sions of bankruptcy at home, it is the prac- 
tice of the Court of Chancery, to select that 
one under which the most ample justice can 
be done, and order separate accounts to be 
kept of the respective estates, in the same 
way as if there had been separate commis* 
sionsi (e). But it should be observed that, 
in such cases, the Lord Chancellor has an 
entire undivided jurisdiction over the whole 
subject-matter, as, indeed, the selection of a 
particular commission pre-supposes ; and the 
very principle upon which the present prac- 
tice of that Court rests, after some variation 
has'^been adopted, may be turned as an argu- 
m^t against its extennon to a separate 
coQccra in the col^mies^ where the jurisdic- 

(d) 2 Bro. Cb. B. 15. 8 V«z. 123 Ss 747* 


J, where 
ot possi- 
hat may 
8, or the 
id mnsti 
itb each 
and ap- 
, the ef- 
the time 
J, in the 
of suoh 
I of the 

> at at. 

of the 
joWy for 
Iter, the 
true, in- 
lie prac- 
ect that 
itice can 
;s to be 
be same 
ed that, 
* has an 
e whole 
tion of a 
and the 
It prac- 
in argu- 



lion of the chancellor does not ordinarily 1818. 

run. For how can it he reconciled with v^n^-.^-,*^ 
convenience and economy, to require the body In tppetl. in the 
of creditoi-s in this island to send their debts n"»"e'of Cbaw- 
to Scotland, to bo proved under the seques- T"? * ^'''•* 
tration there ? But there still remains ano- ^"'"^'"••"'y- 
ther great objection, which, in the absence 
of every other, would, 1 conceive, be con- 
clusive in the present case. The law of in- 
solvency in this island is peculiar to it, and 
the course of distribution different from 
that in Scotland. By the 49th of the King, 
(/) there are certain preferences of pay- 
ment to particular creditors here, which are 
unknown there ; and, although it in not pre- 
sumable that the legal rights of creditors 
would be less respected in Scotland, yet, as 
a matter ol mere policy, it is surely desirable 
that property, subject to distribution in con- 
formity with a particular law, should be ad- 
justed at the place where that law prevails; 
for the law of the place, necessarily enters 

mto all contracts between parties, and forme 

an implied and operative part of all their 

dealings. Upon the maturesc consideration, 

therefore, which I have been able to give 

this important subject, I am of opinion that 

the declaration of insolvency in this island 

must be sustained ; and that the separate 

creditors of the house of Crawford ^ Co, 

must be first paid out of the separate estate 

of that partnership, between which, and the 

house of JohH Crawford & Co. it will be 

necessary to state an account, and on which- 
ever side the balance appears, such balance 

must stand as a credit, and be proved as a 

ratable demand C^^, »i!toi;»» ..« 

Having disposed of the |)ma>/c of the 


M . 

(/) Ch. il. and iM 1 Hea. 'sT'iafc* kSilr 
(Sf) Cxpto. Jobni Cook, B. L. 63^. ' *I 


Ml la 






1810. case, I shall proceed to examine the claims 

'' *■■' * ■ ' ' of the Scotch creditors, according to tho 
U appe.!, in tb« order hi which they are made. The first ot' 

toTd&m\ *^®*'® *^^^>*^» " ^^^^ of Jean Crawford, wlio 
loMlrMMj. ' <ityles herself the widow, and sole so*' anfc 
executrix, of the will of the late John Craw* 
ford, and prays to be admitted to prove the 
sum of £45,707, as having been received by 
James, Andrew, and Joseph Ihtcker Craw-- 
ford, co-executors of their father^s will, and 
being still due to the estate. As this claim 
stands in the same relation to the estate of 
the principal firm, it is natural to suppose 
that some application ui n similar kind was 
made tothe trustees in Scotland ; and I am 
left to infer that if it had been attended witli 
success it would have been so stated, as an 
argument, at least, in favour of its being al- 
lowed in this island ; and i should gladly 
have attended to what passed on the other 
side of the water, as a precedent for my own 
proceedings on this. But, as nothing is 
made to appear, I must examine the claim 
upon its own merits and the evidence be 
fore me. It is stated that John Crawford, 
by his will, left the bulk of his property, 
real as well as personal, to his wife, the pre . 
sent claimant, for her life, with power to dis- 
pose of the accruing rents and profits ; the re* 
mainder to his eight children, among whom 
were his three sons before mentioned. After 
the decease of John Crawford,^), large amount 
of stock in the public funds was sold, and 
the monies arising therefrom, as well as the 
rents of certain real property, and other 
sums belonging to the testator's estate, were 
received by his sons, with the consent, as is 
admitted, of Mrs. Crawford; but under 
vhat authority the stock was sold, or ia 
what manner either that or any other part 
m the property w^^ appropriated, is nowhere 

c claiiiis 
^ to tlio 
e first oi 
trd, who 
: so'' ent 
in Craw* 
rove the 
Eiived by 
r Craw- 
vill, and 
lis claim 
state of 
:ind was 
ltd I am 
]ed with 
J, as an 
teing aU 

lie other 
ray own 
thing is 
le claim 
snce be** 
the pre . 
r to dis- 
; the re- 
^ whom 
. After 
Id, and 
1 as the 
d other 
te, were 
\t, as is 

, or in 
ler part 





In appeal, in Iba 
maiurof Craw> 
FORD & €»*•« 

Stated. From the affidavit in support oftho 1818. 

claim, it would appear to have been em- 
ployed in the general trade which the tes- 
tator had carried on, in partnership with his 
three sons, and which was continued by , . 
them, under the same firms, as during tlie '^•■«y«i 

life of their father. However, it forms the 
basis upon which tlie present claim is made 
by Mrs. Crawford^ on behalf of her hus- 
band's estate. It might be sufficient for me 
to say that the claim cannot be supported by 
the evidence before the Court, because it is 
not proved that any part of the monies re- 
ceived by the Crawfords^ in their character 
as executors, was employed in the esta- 
blishment in this island. But there are 
certain circumstances which, it appears to 
me, would tend to destroy the claim under 
any form. In the first place, the Crawfords, 
vrho have been declared insolvent, have a 
reversionary interest in the very sum which 
is now sought to be recovered ; and it re- 
mains to be shown how far Mrs. Crawford, 
as executrix of tlie will of her deceased 
husband, having suffered his property to be 
employed in trade, has not made herself a 
partner, and become liable to the full extent 
of any interests she may derive under the 
will (h). If such be the case, it would seem 
equitable that any sums of money which 
have been received by the representatives of 
the late JoAn Crawford^ to the prejudice of 
the rights of the other children claiming un-^ 
der his will, should be considered in the na- 
ture of private debts, and liable to be satis- 
fied, in the first place, out of their separate 
property and reversionary interests. But it 
is not for the Court to wander in pursuit of 
a subject which is not before it, and in 

(A) 1 Mtul. and Sel. 4ia 



la appeal, in th« 
nattrrof Craw> 
roBO fit Cq'b. 


which, from the absence of facts, it is expo- 
sed to error. It is sufficient to delermins 
that the claim of Mrs. Crmvjord, as at pre- 
sent brought, cannot be sustained : and t!ie 
decision of the ^Surrogates must, therefore, be 

The claims of the other Scof/h creditors, 
taken collectively, amount :u the sum of 
£07,459 ; they rest upon one and the same 
ground, and may all be resolved into a simple 
question of fact, — are they creditors of 
Crawford 8c Co. of Newfoundland? By their 
own showing the credit they gave was to 
the house of John Crawford & Co. of Port 
Glasgow; and as the latter is considered in 
the light of a distinct firm, it follows that 
these claims must also be rejected. I ob- 
•erve that the Surrogates admitted the first 
four accounts, as set forth in the transcript 
of their proceedings ; but upon what ground 
of distinction, does not appear. It is stated, 
however, that ii: was m consequence of 
those particular claimants having been able 
to trace the goods whi(;h were sold to tho 
house at home, to the possession of the house 
m this island. But 1 cannot agree that any 
substantial c^*' tin'^tion can be founded upon 
thatcircumsnaiirv. As soon a* thft gooiia were 
delivered, i< > ame the property of the 
-vendees, and were mixed up intheundistin- 
guishable mass of their effects ; so that had 
an insolvency immediately followed, the 
Tenders would not have stood upon abetter 
footing than the generality of the creditors. 
But if m this case they should be allowed to 
come here and claim for goods delivered to 
a distinct concern, between which and the 
house in St. John's there are mutual ac- 
counts, the consequence must be that the 
amount claimed, instead of being a credit in 
favouf of the house at home, becomes the 


is expo- 

8 at prc- 
and t!ie 
etc 10, be 

sum of 
he same 
a simple 
itors of 
By their 
i was to 
of Port 
dered in 
)ws that 
. I ob< 
the first 
I ground 

9 stated, 
ence of 
een able 
d to tho 
be house 
that any 
ed upon 
y of the 
hat had 
Bd, the 
a better 
)wed to 
'ercd to 
and the 
lal ac- 
hat the 
redit in 
Des the 



In app**!, iu the 
maiturof Craw. 

credit of the individual, and, of course, al- 1818. 

tcrs the state of accounts between fhe two 
firms, and is attended with tlie efiei i. of gi- 
ving a preference to particular creditors, 
contrary to every principle of the bankrupt f®" * 
laws. 1 must, therefore, reverse that part ""»""'y' 
of the decision of the Surrogates which ad- 
. niits the claims of these particular creditors, 

1 1 with the exception of Lawries\ which was 

originally a direct credit to the house in 
JSewJoundland ; but in consequenc ^ of what 
has been stated, and with the appt arance of 
truth, that Lawrie was referred by ti. at house 
to John Crawford & Co. for pr 7m( nt, and 
j agreed to his demand being placei. to his 

credit in the books of that firm, 1 n.ust let 
this demand lie over until that fact an be 
ascertained, it may be necessary tu add, 
that this estate must be divided in conformi- 
ty with the course lately determined by this 
Court, and not according to the old i uer- 
pretatiou of current supplies. 

From which judgment, or decree, Sk ms, 
for the claimants, gave notice of an ap( jhI 
to his Msgesty in Council; and (on boiial of 
the several claims of William Bennett as 
trustee under the Scotchsequestration; W il- 
]iam Bennett & Co. for money lent Willi: m 
Bennett & Co. for premiums of insurance ; 
Joseph Marry at £p Son, and Jean Crawford) 
entered into security for) the due prose- 
tion of said appeals within the time pre* 
Icribed by law. 




Time allowed to 
M abNnt dtfend* 
ant to appear; and 
theialeof a?es8el 
belonging to bim, 
wbieh was bold by 
attachment under 
the prooces of iba 
Court, directed to 
take place immedi* 
ately, for tbepar< 
pose of preventing 
the deterioration 
of the property. 


Henry Simms against Francis Hoddern. 


HIS action was brought to recover the 
sum of £181 17«. 4d. ; and property of the 
defendant had been attached, but there had 
not been any service of the writ upon him, 
as he was absent from the island. The cir- 
cumstances of the case were shortly these : 
The owner of the vessel called the Brilliant, 
being at St. John's, and requiring necessa- 
ries for the same, took them up upon hot- 
lomty, conditioned to pay the amount ad- 
vanced upon the return of the vessel from 
her then Intended fishing voyage. The ves- 
sel returned, but the money was not paid ; 
and it is now sought to recover it by thia 
action. Proof of these facts having been 
adduced, the Chief Justice said :-^ 

This vessel has been attached for a debt> 
which has been proved to be due by a bond 
which was given for the payment of it at a 
time long past. Enough has appeared to 
satisfy the Court that the vessel is exposed 
to loss and deterioration, and that it is ex- 
pedient to order her to be sold, as would be 
done by any other perishable property. 

The defendant must have a reasonable 
time to appear. In the mean time, let the 
property be sold, and the proceeds held sub. 
ject to further orders. 


Trustees to the estate of John Hill & Co. 

appellants, and 

Henry 8hea, respondent* 

Ji HIS cause camo on in the Surrogate 
Court, on the 19th December, 1816, before 
the worshipful David Buchan^ Esq. and a 
special jury, to recover the sum of j£93 ster- 
ling, being the amount due for the purchase 
of a lot of ground by the defendant below, 
at public auction, being part of the estate 
otJohn Hill ^ Co., situated at Prince Ed* 
yard's Island ; and that Court having given 
judgment in favour of the defendant, agreea- 
bly to the verdict found by the jurv, the 
plaintiffs below appealed to this Court. 

Jt appeanng doubtful to the Court, from 
the transcript of the proceedings, what were 
the points at issue between the parties below, 
and whether the time for completing the 
conveyance according to the conditions of 
sale, had been waved at the trial, or had 
pone to the jury, and chese particulars being 
disputed between the parties, the Chief Jus- 
tice examined Nicholas Gill, one of the 
Jury who was present, upon the facts, and 
who stated that the time of delivering the 
title-deed had gone to the jury, and was 
considered in their verdict. 

Per CMriam.— This is an application to 
this Court, to review the verdict of a jurv, 
upon mattet's qffact, entirely within the'ir 
province. This 1 have already declared to 
be out of the power of the Court. 

Trial by jury is a constitutional right, ex- 
pressly extended to this island by an act of 
Parliament, and a jury here has co-exten- 
sive rights with a jury in England. 

How stood this case at the trial in *^A 
Surrogate Court? The plaintiffs c^l upon 


The Coort will 
not rariflw lb« 
Ysrdiot of • Jury 
upon ntalteri of 




TruBteai of John 
Hill & Co. 


Hbnby Shba. 

the defendant to pay for the purchase of 
certain lands at Prince Edward's Island. 

The defendant contends, that by the con- 
ditions of the sale, as exhibited at the time 
of sale, the vendors were to give a legal title 
on or before the 20th November, 1815 ; but 
that, in fact, they did not make out the title- 
deeds till near Christmas, and that the title 
was not legal. That, in short, they had not 
complied with theconefifeowiof sale, either 
in the time, or in the perfeciiijg of the title. 
This case went to the jury, who determined, 
by their general verdict, all they could de- 
termine—the fact of the time, and that the 
condition had not been complied with. The 
jury could not try the title, because that 
is a pure question odaw. 

But suppose 1 were to go into thib part of 
the case,and say that the title, when tendered, 
was good ; yet the defendant must have his 
judgment upon the fact, as found by the Jury, 
that it was not completed when it ought ta 
have been by the conditions of sale. 

That time was an ingredient in the trial 
below is, I think, apparent, not only from 
the explanation of the juror, but also from 
the course of proceeding ; as it was made a 
point in the defendant's case by the cross- 
examination of the plaintiff's witness as to 
the time when the deeds were prepared, and 
the purchasers required to complete the 
purchase.— The judgment of the Court be- 
low must, therefore, be affirmed. 



Petition of Mr. Ryan. 

The memorial, in substance, stated,— 
that the petitioner had for many years car- 
ried on business, under the style of Ryan 
^ Sans, at Liverpool and at Newfoundland; 
the first-mentioned branch of it being con- 
ducted by Joseph Ryan, one of the sons of 
the petitioner, and the other branch by the 
petitioner himself. That in consequence of 
the {protest and return of some bills which the 
petitioner had drawn, be consulted hit 
friends as to the measureshe ought to adopt; 
and by their advice a general meeting of his 
creditors was convened, and a statement of 
the affairs of the firm laid before them. — 
That at this meeting trustees were appointed, 
and MtyHenry Shea authorized, as agent, to 
dispose of the property, and collect the 
debts due to the concern, for the benefit of 
all the creditors. That at the same time 
that petitioner received the first intimation 
of the protest ^f his bills, he was informed 
by Joseph Ryan that he expected to be abl« 
to effect a compromise Hivitn the creditors in 
England, to whom he had felt himself justi- 
fied in holding out a prospect that the pro- 
perty in Newfoundland was more than suffi- 
cient, if not sacrificed by an untimely sale, 
to disdhti^ all the claims upon it in this 
couhti'y; That from the occurrence of se- 
veral unforeseen and calamitous events, the 
hopes enterUined by J, Ryan \vill be so far 
from being realized, that he will soon leam 
that the property here has not yielded, un- 
der the best management, enough to pay 
ten shillings in the pound upon the amount 
of the Newfoundland debts ; and that the 

t-iti ~.J UC^r. m^f. .>MA *k»a n1a«>Of1 in thft 

painfal predicament of having, though unin- 





"Where there ara 
two braocbet of 
the lame firm, tbo 
one in England 
and the otbtr in 
the property of tba 
firm in each counii 
tnr is, in the event 
of bankruptcy, or 
iniolvency, ezclu« 
aively divisible 
among the credit- 
ors who trusted 
the branch of tha 
firm established 
in that coaaliy in 
which the proper* 
ty is Bituated. 





'I ■' i'*(t r»!. I I., I 
,1 iii;i!i.!||,.t ., » 
(!«h !.y . .f : . 
'■llUrCj '.I',*. ■ ■ ■ ,, ; 
iWl'l-t Uf(r :;; , . - ,., 

'Uia/i'ir , v;j;; >»f ... 

«>■■/■' - I? ,. •. 


I«,il» a..!!., of 5iin™ .1 ^ '"•'"«'"0"» class df their ere. 

MWh order thereon Ji^.' *",'**'» «»fce 

to think that the 3vL«,A^^/ ^'^'?»^<i 
T^ill be entitled to If-^TfM .^'^^^^w-* 
founded S estLe i?.l^^*^^'^«^' 

tweea the*^hoiqe We ^and t J! k ' '^'*' *^^ 
I-iverpool. '^^^e, ai>d the k9U9e ij», 

But they looked to tJitt *Joj«i: 'A^'« V vH 
the ostensible stock ^nV ^«'«' «»d.t6 
trade, for thefr serurit;''^ Wmnr Mtha^ 

% "Newfoundland creditors" I '^;j r 

all. criitora In &i &'*",'' ^ »d<»ds, 
"■■^it to the house of X*^ /"S'''""' 

-'-"■"'- '-^.i'/;iJ:/!, 5?:^';;;„: 

■•■■?;j ;lfi^ 

• «i*,^»».-j>«w 


^elusive ex- 
6{ thpir cre- 
lulled intp a 
er- then po^ 

ny business 
?ir trade to 

* ^jl;i:eaitingi 

deeni .Jj^st 


TOorial ?— p 
m, inclined 

'S^nnpt I;>e 
atJQQs jbe-^, 
il9i49e id, 

' I • 


y <?f that 

1 do not 
md, aad; 
Pp^Si on, 
^ons afii 

ft/:' jjufr 

T^^AtTWooD & Havne^ against Jami,^& ' 
^ UEORdE Lilly. 

j4f sum'^ii?'" '^'' ^/^"«^* *« recover a 
. it IS a clear and settled nilri oflaw Jti L-i 

, Now, what are the falts before u^'^'.tri.. 

inc plaintiff, and nnab e to ctischarrri > .h2 
debt^without a »acrifice rf the S ^ 
which the debt was contmrtprt »5 • ■ 
Jond With the othrdS-ant'eS 

o "Ke cviatuce seemed. 


February IQth, 

A surely is dis.. 
charaed from bra 
Jiability to pay the 
debt of another. 
by the parly, to 
whom the debt is 
duo, giving lime to 
(Its principal debt- 
or witlioul ihe 
knowledge and 
concurrence of the 
surety. But in an 
action against both 
the principal and 
the surely, the Su- 
preme Court will 
give judnment for 
tU plaintiff against 
the prinoi|)al debt- 




Attwood & 

Jambs & Qko. 



indeed, to grow ont of fVaddelVs testimony, 
but that IS completely rebutted liy the testi- 
mony of Wakeham, But it does appear by 
the evidence of H. Simms, the plaintiffs' 
prmcipal witness and confidential clerk, 
that the plaintiffs, in^ communication with 
James Lilly, the principal, at which the 
surety, G, Lilly, was not present, agreed not 
to press for payment of the bond, which, in 
tact, amounted to extending the time for 

it is contended by Simrns, on the part of 
the plamtiffs, that it is not possible to sup- 
pose, from the close affinity of the defend- 
ants, who are brothers, that Gorre Lilly was 
not pmy to tbeindulgence which was shown 
to the principal, and did not accede to it.— 
^ut It 18 possible that he might have thought 
the plaintiffs, in giving time to his principal, 
were satisfied of his means of payment, when 
the extension of time was granted, particu- 
larly as intermediate payments had been 
made, nearly equal to half the amount se- 
cured by the bond ; and it is equally possi- 
ble that the debtor, upon the faith of the in- 
dulgence which had been promised, might 
have i)ostnoned the payments he would 
otherwise have made, and applied his funds 
to other purposes ; but the Court cannot 
speculate upon events, The presumption is 
not strong: enough to overturn the pnncvle 
of law, rawed as it is by the clear proof of 

^n/Jrt^^^'^'^ '^^^''^^* **»»* they did ex- 
fSL tu^T ^o'Pa?«nent. in a communica- 
i?»fc ^1^^. ^e pnncipal debtor, and that 
^thout the surety being made acquainted 
«nl« ^;=.'" "l?«teence. or with thl terms 
iipon whicli It was granted. 

r^/J^w*^' ^'^? ***® reasoning oftheZorrf 
p/mcOlor, in the Qpae of Meu 4* Merring- 


f the testi- 

appear by 

ial clerk, 
ation with 
vhich the 
agreed not 
Mrhicb, in 

time for 

lepart of 
)1e to sup- 
e defend- 
lAlltf was 
as shown 
le to it. — 
e thought 
^nt, when 
, particu- 
ad been 
lount se- 
ily possi* 
>f the in- 
d, might 
B would 
lis funds 

iption is 
iroof of 

did ex- 
nd that 
» tenns 

e Zord 



ton, (a) as applied to the case before me, that 1818. 

the givmg twelve months for payment, be- V,-»-.v^«i^ 
yond the period limited by the bond, has the Attwood & 
effect ofdischarging the surety. This may Hatnes 
be, and certainly is, a hard case upon the j.«« 'l „.„ 
good nature of the plaintiffs; but it would '^"^ L,L?r. ' ' 
be still harder if that good nature were to 
be exercised at the expense of the purety. 
I'erhaps, as a matter of personal feeling, it 
was too much to require the surety to press 
a proceeding against his own brother; it 

would have been better to urge the payment 
of f he debt at the time the bond became 
due. However, I cannot enter into any 
feelings upon the subject This case must 
be conformable, indecision, to every other: 
and as the facts bring it within the rule of 
law which discharges a surety by the credit- 
ors extending the time for payment without 
the privity of the surety, I must determine 
that George Lilly is discharged, but the 
plaintiffs must have their judgment against 
James Lilly in the sum sued for. * 

Against which judgment, so far as it re- 
leased the said George Lilly from the said 
bond, the plaintiffs gave notice of an appeal 
to his Majesty in Council ; and, within two 
days after, appeared and entered into the 
security required by law, for duly prosecu- 
ting the appeal. 

(a) t Vez. Jr. 642. 

• A« this ution WM on vmirwt, • Jadgmrat fn favour 
of on« of the defendants, and against the other, could 
not oerlainly hare been giren ln\ny Conrt of Law in 

u* "i* ""S* *•"• »»<">Iy <>•>• 'Mtweo, among amultitode. 
where tha Supreme Court of Newfoundland baa endea. 
▼oured to administ^ justice secundum bonum bt 

f ??.?1' V^T P»J«« »•»• •"•l>««t regard to the rules 
wrtaWishedm the mother country, nspfeting i\»%Jorm of 


J'^ebruary lOlh, 

The parties to a 
d««d, under which 
the ptoperiy of an 
individual is con- 
veyed lo trustees 
for the benefit of 
his creditors, can- 
not set up such 
deed as an act of 


^:rparte T.H Bft66KiNo and Others/ 

>n the matter of u lU 

Ghaham LiTTLfe's Insolvency.' ' ' * 

Per Curiam. This is an appliratlon to 

LtuJ .L i'^^V ^ri>.^ against Graharfi 
n.i!r * r "u. ^"^ *^^^'«'"® *'•»" insolvent ; in 
proof of whici a certain deed is exhibi ed. 

rlT*^^ ^/"/' «PP«^" to have conveyed 
away the whole of his real and personal es. 
^te and effects to trastees, for the benefitof 
d rpri! i''""!* * ^" ^^"^Pliance with theact I 
clue from X.»///^, as well as a Schedule of bis 
property to be laid before the Court rand 
n certainly does appear that he is not in a 

pound!''" *' ^'^ '""'"'^ ''^'"'"«« '^ '^"^ 
fb^'ni'?^''® "^ pfevious question, whether 

are not'^Kr"*'' ?T^ P^"'^« *« *'^« ^eed, 
are not estopped from setting it up as an 

)VZf'''''^^ ^'""""^ knowlt principle of 
Jaw, that no person shall be heard to aver 
^Ji""? his own deliberate deed. 

With respect to Mr. J^ittle himself, ie 
may be^yery immaterial whether his pro- 
perty is^to pass out of bis hands by a decla- 
ration of insolvency, or by the aLwment 
under the deed of trust; but wit^ fZ^J 
to the creditors, it is very material ; a^ 
therefore, I am under thenecessity of deter! 
mining upon the deed as a matter of Hi« 
§^!^TjS!2 between the .relitS!^"'^^^ 
dee4,; Zf^/e conveys the whole of his real 
*nd personal property and effecte to t^iS 
trustees, tobeseld aSd divided anwnTstto 
creditprs, according to the sttp^osed^^Shts' 

y/r t ' P'<V«''*y Vaaa^iow^d, how. 
ever, to remam m the hands of Xi«/c for a 





1" ( 'i-.<':» .'.'.il aMf- 

lTlt^.r''°^' ^^' '^^^ P"To«« of turning it 

to a better account ; and there was a claSse v^p*«v^^ 

tPrm? "•'^•'"k^ '»»'^'^»o^«'»ce under certain ^Z^ 

terms, winch not being complied with, and T." h'^'r^'JIcno 

the period of indulgence having passed; the , •""! t>tb«a. . 

property, becomes, of course, completely WJ' """I" «^ 

^pw wbatislii,reint!ie:^eeaio'Jifc^^ 

}t.„ .It^onveys the debtor's property to all 
Jns creditors, according to. wh^tT^a^s then 
r^cpi^ef aslaw; and be soVouv^ys it. w^th 
tb^jon^ent of all his creditors. - ^ ' , 

u.,*T^'V^ ^'^? provided rules for thf distri: 
butipn of insolvent estates : but it k nierelV 
in the cas^s where tl,e partl^3 dppot adopt 

Wt interfere with the policy of l^w. ^ ;^ ' : 

♦p^i-^' *!!• ' "^^^ a// persons wlio ar^'in- 
terestedjn the property; for a *iW« dissen- 
iient creditor, whZis , no party to the deed 
yould be abl^ ta4efeat it. ' ^"^ «?^^': 
.lyow. the petitioners in this case are bar-' 
Ue8,to the deed; they executed it with their 

Taff^^h' ^^?*7"' >e too much for ma' 
to Mord them rehef against their own acts ' 
to t^e prejudice of rights which are con- 
veyed, and tq wHoh they c^onsqnted by 
deed,.,,;. ,, ,, ,. • . .. , , , ■ •' 

I sh^J, therefore, yhold the deed to i^ a 
good afl<^ valid convey wee, an4 leave it to 
the tw^ep^ to carry It iijto effect (a) ; at the 
same .^ime professing my readiness to afford 

(o)Seotlie>u«^ItedinftBote in th^2d T. R.§m. 





Ftbnmji llfA, 

John Williams against Tua Willuamb 





"hcin for •rcr/' 
(who diM intM'> 


•nd aiiun. 

by wbieb landed Jl HIS action Was brought tiominalW to 
properivisdafifed recover £l20, as rent of a certain dwelling- 
to "A and b«r house in St. John's. But the point which 
the plaintiff really sought to establish by it, 
was his exclusive right to the premises in 
question. The following is a short outline 
Jhu 1 "!"*'• I.**' <*^ **»« prindpal facts t f the case : — 
aou'lX bJt m«; , The maternal graiidf ither of the parties, 
abaraiiiocommoa •^o Monter, by his Will (which is admitted), 
-'■'*■ bis bfotbers among certain Other dispositions of his pro- 
perty in this island, gave his house, gardens, 
and appurtenances in St. John^s, to ** Mary 
Monier, his daughter, and her heirs for ever.'* 
Mary Monier afterwards intermarried with 
George WilHams, and by him bad several 
children, of whom the plaintiff is the eldest. 
George Williams and his wife Mary both 
died intestate, and the plaintiff claims the 
sole right to the premises, as heir at law, 
and under the express limitation of the de- 
Tise ; whilst the defendants contend, that 
real property in Newfoundland has sdways 
been neld to be mere chattels^ and iiot sub- 
ject to the English law qf inheritance. 

For the plaintiff, it was urged that, althOngti 
real property in Newfoundland is considered 
as chattels for the payment of debts; yet, un- 
der the laws of England, which arc; the la^.<« 
of Newfoundland,ybriA« imi|Mi««5 of succes- 
sion, it ought to be considered as real pro- 
per^. That by a bond intended to nave 
oeen given by John Monier, in contempla- 
tion of the marriage of his daughter, it ap- 
pears to have been the clear understanding 
of the family, that the property in question 
would descend to the plaintiff as A«trali^«;. 
That suppogiiig ihe custooi oi ibis islaad io 








he well founded, and universally understood, 
it must have been known to the testator. 
And that, therefore, by giving the property 
to the plaintifll'8 mother and her heirs for 
ever, the testator must have intended the 
word "heira** to operate as words of limita< 
tation to the eldest son of his daughter Mary. 

To these arguments the defendants answer, 
that the rules of real property as to succes- 
sion are not in force, and never have been re> 
cognized in this island ; and that, by an in- 
dorsement at the back of a certain deed, it 
appears that the mother of all the parties to 
this suit considered her property as equally 
divided amongst her children. 

Per Curtam^-^After diligent inquiries whe- 
ther any, and what, rules of descent have 
been followed by the Courts in this island^ 
1 cannot find any record which throws the 
jqnost distant light upon the subject. 1 can- 
not, however, regard the silence of the 
Conr(s as entirely without expression ; and 
the inference that X should deduce from it 
is, that the law pf inheritable succession^ 
with it^ alluring rights and legal conopliGa- 
tions, has never been urged before the Courts 
of this island. However, as the question is 
npw before me, and I am called upon to 
determine it, I shall endeavour to trace my 
own yf^y through those first and general 
principles, which appear to afibrd the only 
safe conduct to aright decision of the case.* 

* It appaarg lohav* bteo Mr. Fffriet't intention to have 
inierted his whole JudgmenI upon this interesting esse in 
the record ; but, unforionstely, from some cause or oth«r, 
it was nevf r done ; and all thai can bo collected from the 
.record, in Uh present state* tbeneforef Uf that the judgmeat 




Williams snd 



Undor tbe 40lii 
O#o. 111. 0. 27, 
■ions hare no ju- 
riBdiotion in catvs 
arising out of a da> 
mand for i/ait, 
wliere the demand 
exceeds forty shiU 
lines. [Such aju- 
risdjctioii is noir, 
ho w«fer, expressly 
conferred on them 
l)y Ibe 6tb Geo. 
lV.,c. 07, §.22,] 

IIuTTON, M'Lea & Co. against Dennis 

"N motion, this day, to quash certain pro-^ 
ceedings which had taken place in t!ie 
Court of Sessions, it appeared that Butler 
^ Grace, boat-keepers, and dealers of Hut' 
ion 6c Co.f had been supplied with caplin 
bait, last summer, by Keifi/, in payment of 
which they drew orders upon Hutton ^ Co., 
which were refused, upon the ground that 
the drawers had no authority to draw them. 
Kelfy afterwards brought his action in the 
Court of Sessions against Butler i^ Grace, 
for the amount of the debt; and having ob- 
tained a judgment, followed the proceeds 
of their voyage into the hands of the present 
plaintiffs, as the receivers of the voyage. It 
also appeared that an objection had been 
made, at the trial, to the jurisdiction of the 
Justices in Sessions ; which was over-ruled, 
upon the authority of a rule framed by a 
former Chief Justice, for their guidance, and 
expressly directing that the price of bait 
should be considered as wages, and rank as a 
preferable claim. The same objection was 
now urged before the Supreme Court ; and 
it was also contended, thai, admitting the 
case to be within the jurisdiction of the 
Court below, yet the present plaintiffs were 
not parties to any engagement between 
Butler jr Grace, and the defendant, Kelly. 
Per Curiam. The defect of jurisdiction 
in the Court of Sessions to try an action for 
money due for bail, i» so evident upon the 
face of the proceedings, that there can be 
little hesitation in determining the course to 
be pursued. But, perhaps, I owe it to the 
public to explain tbe reasons which com- 
pel me to depart from a rulef of of practice 






tain pro- 

in tlio 

it Jiutler 

of Hut- 
h caplin 
ment of 
m 4r Co.f 
und that 
iw them. 
)n in the 
^ Grace, 
iving ob- 
B present 
ige. It 
lad been 
m of the 
ed by a 
ace, and 

of bait 
ank as a 
Hon was 
urt; and 
ting the 
1 of the 
i/Ts were 

ction for 
ipon the 

can be 
ourse to 
it to the 
)h com- 


^k Co. 



established by the supposed authority of 1618. 

this Court. 

The Courts of Sessions in this Island are 
instituted by the Governor, in virtue of his 
commission from the Crown ; and, in analogy 
to similar Courts in the mother country, 
they are invested with general powers as 
conservators of the public peace; but their 
authority does not extend to the trial of any 
civil causes^ unless it be expressly given 
them by act of Parliament. Let us see, then, 
what power Parliament has conveyed. The 
statute of the 15th of the King authorizes 
the Courts of Sessions in this island to de- 
termine all differences concerning the wages 
of seamen; and also provides that all the 
fish and oil which might be talc«n and made 
by the hirers of seamen, should be liable, in 
the first place, to the payment of wages.-— 
The Judicature Acts which have since pass- 
ed, confirm this authority to the Justices of 
the Sessions, and extend it to the determi- 
nation of all actions of debt under /or/y 
shillings. But here their civil jurisdiction 
terminates. Jf any authority, derived from 
tlie usage of the island, might be supposed 
to remain, it is completely annihilated by 
the clause which declares that no Courts 
whatever shall hold plea of any civil matter 
(other than seamen's wages, and debts under 
forty shillings) except the Supreme and 
Surrogate Courts. Now, money due for 
bait is certMnly not wages ; and the debt 
being over forty shillings, the authority to 
try it must be sought elsewhere. It is too 
clear to require observation, that. the Chief 
Justice cannot delegate his judicial authori- 
ty to other hands. The Judicature Act en- 
ables him to appoint a person during his 
absence to perform the mmisterial functions 
of this Court, but with an exnres^i savinfr as 





Button, M'Lka 

& Co. 



I ! 

I ! 



to hearing or determining any 'matter of A 
civil nature; indeed, si ch a power of depu-> 
ting a judicial power would have been con- 
trary to the constitution of a British Court* 
The only ground Upon which the rule con- 
tended for can be supported, is upon that 
clause of the Act which directs the ChieJ 
Justice to *^ settle forms qf process and rules 
of practice, for the conduct of suits and the 
dispatch of business in the Court of Sessions." 
But a rule oi practice is as essentially differ- 
ent from a rule of law, as form is from «<ft- 
stance. The Act of Parliament renders fish 
and oil primarily liable for seamen's wages* 
A rule of Court extends this preference to 
boat-hire and the supply of bait. Surely 
this is not expounding, but making, a law ; 
and the power whic4i was strong enough to 
frame ftnd enforce such a rule, by an easy 
exertion of itself, might have extended the 
law still further, .or have repealed it alto- 
gether, it is an important part of the duty 
of the Supreme Court to watch over the 
proceedings of the other tribunals establish- 
ed within the sphere of its authority, with a 
view not only to the rights of suitors, but to 
the protection of the tribunals themselves ; 
for it is well known that if an inferior Court 
exceed its jurisdiction, and an injury is oc- 
casioned thereby, the party has a right of 
action against its members. Under every 
▼iew of this case, therefore, 1 must deter- 
mine against the proceedings, and they 
roust be set aside. 

In the regular course of business, the 
plaintiff, Kelly, would be driven to a new 
action to recover the amount of the bills or 
the value of bis bait ; but as we are in the 
habit of attending less to the forms, than the 
ends, of justice, I shall take this opportuni- 
ty of explaining what I apprehend to be the 

itter of A 

of tiepii^ 
3een con- 
t$li Court) 
rule con-' ■ 
ipon that' 
the Chief 
and rules 
■8 and the 
rom sub-' 
ders fish 
's yvageSt 
srence to 
r, a law ; 
nongh to 

an easy 
tded the 

it alto- 
the duty 
3ver the 
7, with a 
s, but to 
nselves ; 
or Court 
ry is oc- 

rigbt of 
er every 
it deter- 
id they 

5SS, the 
o anew 
bills or 
i in the 
han the 
> be the 

! ■ 



law upon the caS^. feait-money is not wa* 
ges ; and no power but the magic of Parli- 
ame7>t can make it so. All preferences of 
one creditor to another are contrary to the 
equal rules of justice, and in oppositidn to 
the very object and end of the bankrupt 
laws of all countries. 1 believe that the ex» 
tension of preferences in this island, beyond 
the letter of the Act, has arisen from a hu- 
mane disposition o^ the Courts to let in cre- 
ditors whose demands were of a strong 
kind, but which, by not being considered in 
the first order of preference would fre- 
quently be lost altogether ; and J am ready 
to do justice to the intentions of the Court; 
at the same time, I will freely state that, in my 
own apprehension, it was e'xercising a parti- 
cular lenity at the expense of that general 
beneficence which belongs to the law, as a 
system of even and regular justice. - 

While I sit in this Court I shall always re-^ 
gard preferences of payment amongst Cre- 
ditors with a jealous eye; and I feel assured 
that I am borne out by the intentions .of the 

Much of the erroneous interpretation 
of our Insolvent Act has arisen from 
a supposition that it is a peculiar law, 
both in its application to this island, and 
in the character of its provisions. To 
the latter I cannot assent. Our Insolvent 
Act is nothing more than the application of 
that part of the maritime law of Europe 
Which relates to ships and sailors to the 
fisheries, which, in their general features, 
bear a strong resemblance. For example, 
in the adjustment of the claims upon a ship, 
by the laws of Europe, the seamen have a 
right to be paid the full extent of their wages, 
while a plank of the vessel remains. Next 

in nrinritv nf rinim aro matoflnia nwtA «l.^«^ 



HuTTON, M'Lea 





Bottom. M'Lba 
A Co. 






who have furnished necessaries abroad, who 
clairri a preference amongst each other ac- 
cording to the recency of the date of their 
several bottomries ; and, lastly, all other 
creditors alike. What is this but the law o^ 
Newfoundland applied to llie product of a 
fishing voyage.jnstead of a ship-^to supplies 
for such voyage instead of necessaries for a 
foreign voyage, and to the last supplier in 
preference to the one preceding, instead of 
the last security of bottomree ? This appli- 
cation of the maritime law to the fisheries 
naturally suggested itself to the Courts at 
home, which used formerly to determine all 
causes which arose in this island. It was 
as naturally followed by the Court of Vice 
Admiralty, which afterwards entertained 
civii actions; and it remains to this hour the 
law of the island. Jn the case before the 
Court, I shall consider bait as a very neces- 
sary supply for the fishery, and, as such, it 
must rank with all other supplies. If there 
be a necessity for giving it ^^ higher claim, 
recourse must be jiad to P&rliament ; and, 
m the mean time, 1 should recommend bait- 
suppliers to have a previous understanding 
with the supplying merchant, before they 
part with their bait, and not to risk the un- 
certainty of coming upon them at the close 
of the season. 


>ad, who 
>ther ac- 
B of their 
all other 
le law 0^ 
duct of a 
ries for a 
ppfier in 
istead of 
lis appli- 
ourts at 
'mine all 
It was 
of Vice 
bour the 
fore the 
y neces' 
such, it 
If there 
r claim, 
it; and, 
nd bait' 
re they 
the un- 
le close 


in the matter of Dooling & KEttY's 

L) PON motion, it was this day ordered, 
with consent of the appellant from the late 
order, or decree, of the Court in this case. 
4hat the creditors for the year 1815, who 
Had not received either goods or money, 
should receivfeat the rate of 55. in the pound 
out of the goods bought in by the trustees: 
and further, that the balance be remitted to 
^nglandjor the purpose of being invested in 
the public securities, to abide the issue of the 
appeal. -^ 

And it was furtherintimated by the Court, 
that upon reconsidering the case of those 
creditors who had received goods in specie, 
at a supposed valuation, to the extent often 
shillings m the pound, upon the amount of 
their demands, if satisfactory proof could be 
brought that such goods, if sold at the time, 
would not have realized the value at which 
they vere received, it would cause the Court 
to make an alteration in the order of distri- 
bution; and the Court was the more anxious 
to set this matter right, as it had been made to 
appear that the principal creditor, Graham 
J^tttle, was present, and. indeed, a party to 
the resolution of the creditors, under which 
the division m goods was made. But as the 
matter was under appeal, the appeal had 
belter be suspended until such proofs could 
be brought m. 

On a subsequent day, certain proofs, by 
affidavits, being laid before the Court, that 
the goods which had been received in specie 
had not realized the amount at which they 
were valued ; and that the creditors were, 
generally, of the same opinion, inasmuch as 
" — "--vv.s,^ v» luciu uuu cojiseaieti io re- 



"Where some 
creditors had re- 
ceived a divideoJ 
and others bad not, 
the Court directed, 
with the concur- 
rence of the body 
of creditors, the 
payment of the 
same dividend to 
those creditors who 
bad not already re> 
celved it ; and or* 
dered the surplus 
of the insolvent 
estate, after the 
payment of such 
dividend, to be In- 
vested in the pub- 
lic securities in 
£ngland, %» abide 
tlie determination 
of an appeal then 
pending before the 
King iu Council. 




Is the mttttcr of 
D00MNO& KbIi- 

duce them from the original valuation of IOju 
to 55 ; it was ordered by the Court, that 
the first order be altered, as follows : 
after the word •* lot," — unless the persons re- 
ceiving the same may be able to prove to 
the satisfaction of the trustees, (in case of 
difference to be determined by the Court,) 
that the goods have not actually realized^ 
or been worth, the sums at which they were 
valued, in which case, they must be taken 
at, or as nearly aa may be, the value they 
liave realized. 

\ • 

/■ / 

ftbrnary 20/i^« 

The person or> 
dtiing an insurance 
is liable for the 
premium; and the 
insurers ca^ sus' 
tain an action 
agftinst him. 

Attwood, Hunt, and Wilson*, a^ami^ 
Tr^stees of Samvel Kough & Co. 


J HE plaintifib had effected, by desire of 
the insolvents, an insurance on some pro- 
perty sent from this country to Ross, in 
Jreland ; and the payment of the premium 
was now resisted by the defendants, on the 
ground that the parties who were to receive 
the benefit of the insurance, were alone lia- 
ble fur the payment of the premium. This 
defence was, however, immediately rejected 
by the Chief Justice^ who, said : — 

The main ground of defence %o this ac-< 
lion is, that the plaintiffs, in insuring tHe 
Sbamrojck and eargo^ although they did it 
by the directions of the house A«re, yet they 
looked to the house at home for payment of 
the premium ; and that as it was to the £ng^ 
lish house that the proceeds of the insured 
property went, so the insurers should look 
to those proceeds for the premium advanced 
for their security. But it is impossible for 
the insures to follow the property for the 
purpose of recovering their claims for a pre- 


tionof lOjb 
lourt,. that 
t follows : 
persons re- 
o prove to 
a case of 
he Court,) 
' realized^ 
they were 
t be taken 
value they 

, against 

Y desire of 
some pro- 
Ross, in 
e premium 
its, on the 
to receive 
'. alone lia- 
am. This 
ly rejected 

io this ac-< 
isuring tKe 
hey did it 
?i yet they 
ayment of 
\ the £ng-^ 
be insured 
lould look, 
ossible for 
'ty for the 
for a pre- 


the insurance, unless in a case of mere agen- 
cy, and even then they act upon tiie faith 
of the principal in reality, and may properly 
be said to look to the persons ordering the 
insurance—" Qui facit per ahum facit 


Now there has not been a shadow of evi- 
dence to show that the plaintiffs looked ex- 
clusively to the partners in Ross to pay 
the premium. The letter which directed 
them to inform the house of the insurance 
being effected, might have gone farther, and 
desired they would draw for the premium ; 
but, even then, if the premium had not been 
paid, they might have come back upon the 
house here, as having ordered the insurance 
without a hint that the insurers were not to 
look to them for the premium. Looking at 
the letter by which the insurance was effect- 
ed by the plaintiffs, 1 cannot say that there 
is anything to discharge the house here 
from their Kability for the premium ; but, on 
the contrary, it is a general order, and the 
estate of the parlies who gave the order 
must be primarily liable lor the premium. 
Judgment for plaintiffs, £210 75. 6rf. 



f n the mutter of 
D00LIN6& Kel- 
ly's Insolvcucj* 

William Lego against M'Carthy & 

JL he property which formed the subject 
of the present action, is a plantation at Car- 
bonear, and the dispute between the parties 
grew out of these circumstances : 

Henry Webber was in possession of the 
disputed plantation, and by his will, dated 

after the'deatli of B, arid pays'rent fo the reversioners, 
to a eonfirmatmn nf tho lanaa on, I ^«i., ...b^. • <». 

|S«e Woodfall'B T«naat»' Law, pp. 39 and 78.]] 

Febntary 28/A, 

6, tenaDt for 
life, demises for 
years, and dies be« 
fore the expiration 
of the period men* 
tioned in the lease. 
The lessee conii* 
nues in possession 
This does not amount 








s t. 



in 1769, devised it io Frances Tucker, forlier 
life, and, after her death, to her three chil- 
dren and the survivors of them. Upon the 
death of Webber, Frances 7'ucker succeeded 
to the property, under his will; and by 
lease* dated in 1776, leased the same to Dr. 
Ferrers for the term of ten years, with ev 
singular clause, that upon the lessee's per- 
forniing certain conditions therein express- 
ed, respecting a part of the premises, he 
should, possess and enjoy the remainder «» 
hng as he or his assigns should think Jit, 
In 1787, Mrs. 7W*«- brought an action 
against Ferrers for holding over after the 
expiration of his term, and the Jury found, 
«• that the principal part of the property, aa 
leased, should be restored to tlie plaintiffs, 
and the remainder continue in possession of 
the defendants, subject to the payment of 
certain rents, and the performance of cer- 
tain conditions." Two of Mrs. Tucker^s 
children died in her life-time, and Mrs. 
TwAcr herself in 1 810, Her sole survi ving 
child, Henrr% continaed for some time after 
her death to receive a yearly rent of £7 10*, 
for the premises now in possession of the 
defendants, under a conveyance to them 
from Mr. Watts, the representative of the 
^te Dr. Ferrers ; and in 1813 he, Henrv 
Tucker, sold the same to the plaintiff, who 
seeks, by this action, to eject the defendant 
from the possession thereof. 

Th^ Chief Justice oh»erved that two ques- 
tions had been raised, upon the foregoing 
facts : 1st, does the acceptance of rent by 
Henrif Tucker amount to a confirmation of 
his mother'slease to Dr. Ferrers ? And, 2dly, 
how far property adapted to fishing purposes 
can be considered liable to the laws of land- 
lord and tenaiit ? Upon the first point, he 

felt pRrfpoflv rnniirlonf <h<«*' ♦H-" -»i * 


A-er, for lief 
three chil- 
Upon the 
I ; and by 
ime to Dr. 
re, with iJk 
ssee's per- 
ih express- 
emises, he 
nainder as 
i think Jit^, 
an action 
T after the 
ury found, 
roperty, as 

^session of 
layment of 
ice of cerr 

and Mrs. 
time after 
of £7 10*, 
ion of the 
\ to tb€m 
ive of the 
le, Henty 
ntiff, who 

two qujes- 
of rent by 
mation of 
Lnd, 2dly. 
s of land- 
point, he 


of rent by //. T. did not amount to a con- 
firmfition of the lease, and only created a 
tenantcy from year to year. It was true that 
m the case of a lease by GLffua^'dian for a 
longer period than his guardiataship, an ad- 
.eptance of rent by the ward, would amount 
to a confirmation ; because in that case the 
interests are one> and, therefore* what one 
does, and the other recognizes, must bind ; 
but here the interests are different and oppo- 
site, and, consequently, a different rule 
must prevail. The2d pomt, he added, could 
not properly be raised between subject and 
Subject, and could only arise between the 
crown claiming after the determination of a 
life interest, and a subject claiming through 
the person whose interest was protected by 
the statute. It was not, therefore, atpresent^ 
necessary for him to express his sentiments 
upon it, and he should give judgment for 
the plaintiff. 




The trustees of Graham Little against 


J. HE questionhere raised was, whetherthe 
mortgagor, being permitted by the mortgagee 
to retain title deeds, does not inyj^Iidate ?he 
mortgage, as against abondJidepavcUaset 
ignorant of such mortgage ? 

Graham Little sella to Burmtt Rutfe^e, 
and Burrd Rutledge mortgages to XMile 
as a security for payment of purclias'e mo- 
ney, but obtains possession of title-deeds, 
and there is no mention of the mortgage in 
the bill of sale to JRutledge. 

Rutledge obtains a grant of other lands, 
and sells them, together with those pur- 
chased from C?. Little, to one Dullahanty, 

April ioM, 

The retontibn of 
title-deeds by tha 
mortgagor, with 
the consent of the 
mortgagee, will 
prevent the mort* 
gagee from setting 
up the morlKaga 
against a honajide 
purchaser for a 
valuable considera- 
tion, even though 
the mortgage tad 
been recorded la 
the Supreme ^ 
Court. But note, 
this was before the 
passing of the 6th 



TriMjtees of G. 









M'lio is not nppiised of the mortgnffe, and 
pays a full consideration. These facts were 
not denied. But it was contended that the 
mortgage to Lillle was recorded in ifie 
Supreme Court, agreeably to a rule made 
by the Ibte Chief Justice TrtmletU 

Per Curiam, -h appears that, in April, 
1814, JMtle sold a plantation called '• Ga- 
den's Marsh" to Rutledge, for the sum of 
x200, and regular deeds of conveyance 
were given, together with the title-deeds of 
J^tttle, to Rutledge-, but as the monev was 
not paid at the time of the sale, a mortgage 
was made on the same day by Rutledge to 
.iMtle, and recorded in he books of the 
Supreme Court. About a year after this 
transaction, Rutledge obtained a grant of 
raore land, and sold the whole premises to 
JJullahanty for £300, who paid the same 
unconscious of the mortgage to Little. The 
vendor, Graham Little, in parting with the 
title-deeds, at the time that he sold the 
plantation, and thus giving Rutledge the 
means of committing a fraud ly keeping 
out of sight any traces of a mortgage, would 
be precluded thereby from setting up his 
mortgage against a bondjide purchaser, igno- 
rant of the mortgage, and it must have the 
same effect against his assignees. The re- 
cording in this Court is not sufficiently 
founded on law, to enable me to make that 
circumstance the basis of a decision differ- 
ent from what is held in England upon 
cases similar to the present* 


gnge, and 
facts Mere 
d thai the 
ed in if^e 
rule made 

in April, 
ed " Ga- 
he sum of 
■deeds of 
oney was 
ttledge to 
ks of the 
after this 
grant of 
emises to 
he same, 
tie. The 
with the 
sold the 
"dge the 
e, would 
g up his 
ler, igno- 
have the 
The re- 
ake that 
n differ- 
d upon 



Colonel FiTZHERBKRT against Williams 
& Gill. 


__ His action iat'oae out of some altehl- 
lions in the arrangements of the church, un»- 
der which the plaintiflThad been deprived of 
a pew he had formerly enjoyed as Com- 
mandant of the Garrison; and the nature of 
the plaintiffs right to the pew seems to be 
clearly defined and settled by the Chief 
Justice in the following judgment t — 

Per Curiam, At the first hearing of this 
cause, the Court expressed an opinion that 
. the officer in command of his Majesty's 
land forces in this island, had a right to a 
seat in the pew occupied by him, before the 
Removal of the organ into it, and not a mere 
courtesy at the hands of the churchwardens; 
and it entertained the hope that this opinion 
might have led to au amicable arrangement 
between the parties, and the appropriation 
of another pew less objectionable than the 
one which ha<i been prepared for the com- 
mandant. As, however, the recommenda- 
tion has not had the desired effect, 1 must 
proceed to discbarge my duty in passing the 
judgment of the Court. Jt appears that the 
old church being in a state of dilapidation'and 
decay, it was deemed proper to rebuild it by 
subscription, which is the only mode of rai- 
sing monies in this island ; but as the funds 
fell very short of the undertaking, an appli^ 
cation was made to the Governor for assist- 
ance, who, upon representation to the 
crown, obtained a grant of the sum of £500 
towards the completion of the church, which 
was effected in, or about, the year 1802. It 
does not appear that any express reservation 
■was made to the crown of any parts of the 
church ; but that certain pews were occu- 


Muy 2rf. 

Tlifl Crown is at 
fully entitled lo 
tliosn parts nf the 
chiircli wiiicl) have 
been nucccssivdy 
occupied by his 
Majesty's apr« 
vanis, as any indi- 
vidual is to iha 
pew he occupies. 
If, therefore, any 
public ofliccr la 
whom the Kingr 
has given the usa 
of one of the pews 
belonging lo the 
Crown be dnprived 
of this easement, 
or obstructed in 
the enjoymput of 
it, by the churcho 
wardens, such nn 
officer may brin^ 
on action on the 
case Rgaiust them } 
but the Governor, 
as the King's ro- 
prpsentative, niny 
dis|iose of the co- 
vernment pews as 
he thinks proper. 





Williams 6e 


pied from the opening of the church by th<e 
officers of the crown; and, amongst others, 
the central seat in the gallery, -.vhich is now 
occupied by the organ, was appropriated to 
the Governor, with whom sat the command- 
ing o/SSlcer of the forces ; the officers of the 
navy having the next pew on his right, and 
those of the army on his left. Lord Gambier 
appears to have been in the government of 
this island at the opening of the church ; but 
disliking the situation of the pew in question, 
he took a private seat in the body of the . 
church, and the commanding officer of the 
forces continued to occupy the first pew, 
ivithout interruption, from the year 1802, 
until the erection of the organ, within the 
last few months. During the administration 
of Sir John Duckworth, about they ear 1811, 
the church was extended, and in cocsidera-" 
tion of the further sum of £250, subscribed 
by the crown, through his hands, a new 
pew was fitted up for his accommodation 
near the pulpit, and is the one at present 
used by the Governor. This last pew was 
given for a new consideration, and nothing 
was said or understood as to its being in 
exchange for the one originally occupied by 
him. in the course of last year, the proprie- 
tors of the church being desirous of erecting 
an organ, the church-wardens consulted the 
late Governor as to its situation; and it being 
considered that thepew occupied by Co). Fitz* 
Herbert, as command ant, was the fittest for the 
purpose, his Excellency was pleased to direct 
that it should be taken in exchange for the 
singing-gallery, a pew used by the singers 
on the left side of the gallery. The church* 
wardens, however, consulted the Colonel, 
who stated that he had no objection to re- 
move; but it must be expressly upon the 
faith of another pew, equally well adapted 


;h by tlid 
it others, 
h is now 
riated to 
•9 of the 
ij^^ht, and 
iment of 
irch; but 
■^ of the 
fr of the 
irst peWf 
ar ]802i 
ithin the 
Bar 1811, 
i, a new 

lew was 

being in 
ipied by 
ilted the 
1 it being 

9t for the 
to direct 
3 for the 
: singers 
n to re- 
ipon the 



to the station he filled, being prepared for 
him. It is to be lamented that something 
more definite had not been arranged be- 
tween the parties, and that. the pew which 
was intended for him had not been more 
particularly pointed out and approved at the 
time. The Colonel states that, in consider- 
ation of the sacrifice he had made, and the 
convenience which had been afforded the 
church, he was entitled to expect every libe- 
rality on the part of the proprietors, and 
their representatives, the church-wardens; 
and I do certainly agree with him in the 

Cropriety of that expectation. The pew» 
owever, which was taken in exchange, was 
given to the officers of the navy, and the 
one occupied by them transferred to the 
Colonel, a pew in sis^e something less than 
the one he had resigned, and subjected to 
sounds certainly not fty distance made more 
9weet. Such is the state of facts before me, 
upon which 1 am called upon to delermine 
the right which is clsiimed. But there is a 
preliminary question : Is this Court compe- 
tent to determine such right ? 

As between the church-wardens and the 
colonel, had he been dispossessed by them 
of a seat belonging to the crown, I could 
have indemnified him for any disturbance ii^ 
the quiet enjoyment of possession. But in 
this case there has been an exchange between 
the governor, as representing the crown, and 
the church-wardens; by which exchange, 
the pew occupied by the colonel has passed 
to the general rights of the church, and the 
pew called the singing-gallery has been 
transferred to the crown; for I hold, that as 
all property in the church is in virtue of sub- 
scription, and as the crown has subscribed 
very liberally, the crowtt is as fully entitled 
to those parts of the chvrch which have 




Williams & 


I I 






Williams & 



been successively occupied by his Majesty » 
servants as any individual can be to the 
pew which he occupies. Uut, independ- 
ently of tiie crown, no rij;ht can be claimed 
in the pews belonging to the crown ; they 
must be held like the assignment of barracks 
and other accommodations immediately 
afl'orded by the crown, at the discretion of 
His Majesty, and are entirely a matter of 
private arrangement by those under proper 
authority from him. Recommending the 
commanding officer and the officers to that 
source for relief, I m-jst determine against 
the present claim to an indemnity from the. 
cliurch- ward ens. 

. ■ ( 


July 0th. Jno. Lynch against CATHEniNE Coughlan^ 

•• Actio non 
accrevit infra 

SEX ANNOS" \i a 

good j'lea in New- 
foundland to a debt 
due,on simple con- 
tract, more iliinsix 
years b(>(ore (he 
coDiniencenient of 
tti« action. 


HE only interest which this case is ca- 
pable of exciting, arises from its being the 
Jirst on record in which Mr. Forbes held 
that the statute of limitations was a part of 
the law of England applicable to the circum- 
stances and condition of this island. In 

deciding it the Chief Justice said : 

The cause of this action being one to 
which the statute of limitations applies, in 
j)art, I must begin with limiting t/ie time foe 
which the demand for wages may be sustain- 
ed to six years from the time of serving out 
the writ. Of these six years eighteen 
months must be deducted (according to the 
agreement proved by the plaintiff's witness^ 
and confirmed by the defendant's witness,, 
viz., that plaintiff was to have his victuals, 
clothes, and boarding, in lieu of wages), 
leaving four years and a half to which, I 
think, under the evidence, he is entitled to 
wages, at the rate of f20 per annnm, liable 


s Majesty *a 
I be to the 
be claimed 
own; they 
of barracks 
iscretion of 
a matter of 
ider proper 
ending the 
cers to that 
line against 
)[ from the. 


:ase IS ca- 
i being the 
hrbes held 
I a part of 
he circuni' 
sland. In 

ng one to 
applies, in 
/le time foe 
be sustain- 
erving out 
I eighteen 
ling to the 
's witness, 
s witness,. 
i victuals, 
f wages), 
which, I 
ntitled to 
ira, liable 


to deductions for such articles of clothing 
and other arlicles (except usual meat and 
tlnnk allowed to all servants about a house) 
as the plamtifl' has beea actually supplied 
with by the defendant, who must produce 
an account thereof, beginning in the spring 
ot 18I1J, and ending in the fall of I8I0I 
ami deliver a copy of the same to the plain- 
titt before the next court-day, unless the 
parties should previously come to an ar- 
rangement among themselves upon this 
point. *^ . 






William Dawe against Peter Faddy & 
John Connell, 

J u ^^® action, which was for an assault 
and battery, a special jury returned Jhe foN 
lonng verdict : — . 

" Tlju dry find John ConneJl guilty of an 
asbuult and battery. Damages £5, with 
half costs of suit. 

'* Peter Faddy guilty of aiding and abet- 
ting an assault and battery. Damao-es ^ClO- 
with half costs of suit." * 

And the Court gave judgment accordinely 
against the defendants. ♦ ^^ 

in this case clmus atUntion on thrt* 

* Tbt T«rdtel 

grounds : 

1st. Because the Jury have assessed several damaces 
lor a jouU trespass. * 

2dly, Because ibey have found one of the defendanle 
guilty as a principal in tbe^tt, and iH other as only in 
the second', degree. And, 

3(lly, Because tbey have given much higher damages 
against the principal in the second, than they have done 
•gainst the principal in the first, degree. 
• 7 '*•* "fPect to the first point, it was certainly holden 
tikLowfield V. Bancroft, 2 Stra. 910, and has ever since 
been admitted in Wesimiuster Hall to be good lavr, that 
where the defendantji nl<inrl ininil.. :» .» —•:» '* 

Septemher 1th» 

In an action of 
trespass for an 
assault, the Jury 
assess several da< 
mages against tb* 



u ^ 



September 14th, 

Kent received 
by a general iner> 
chant, as agent to 
the landlord, is nut 
entitled to a pre- 
ferable claim in ibe 
8?ent of the agent's 


William Newman against Trustees of 

Tr EM LETT & Co. 

Ji HE circumstances of this case are suffi- 
ciently explained in the following judgment : 

Per Curiam. There is not evidence be- 
fore the Court to sustain the present action. 
It appears that Tremletts were the agents of 
the plaintiff, and received the rents upon his 
property in this island. 

That they received various sums in the 
year 1817, which they applied to the pur- 
poses of their trade ; and witness states that 
he intended to appropriate the balance of an 
account due to his house from that ofNeivman 
4r Co- to the repayment of the sums he had so 
applied ; but that being pressed by the Ses- 
tsions for servants' wages, he drew the ba- 
lance out of Newman ^ Co's. hands, and 
appropriated it to the payment of wages. 
How can this be called an appropriation of 
a particular sum to the payment of the plain- 
tiff? The specific monies which he received 
for the plaintiff, he spent as soon as 
he received. He afterwards determined to 
JEipply a debt due himself, to the repayment 

the damages cannot be given feparaiehf againat tbem; yet 
»t a period not very long befoi^ the decision la Lowfield 
v. Bancroft, Lord King did take a verdict in a precisely 
pimilar case (that of Lane y. Santeloe, 1 Stra^?0), where 
the Jury gave sevqral damages ; and I think it will readily 
be admitted that the earlier decision furoishes a rule more 
applicable to the state of this country, and the course of 
proceedings in our Courts, than the latter one. 

On the second point it may be observed, that, though, 
technically speaking, there can be no accessory in tres- 
pass (Rex V. Jackson, 1 Lev. 124), yet tbtre may be a 
distinction between Ibe principals. 

And, on the last point, the verdict may be jastilied by 
the oobsideralion that it is perfectly consistent with natu- 
ral justice, that a rich man who aids and abets ao assault 
should be mulcted in higher damages than the poor mah 
who voiumils it at iiis instigation, or by iua command. 


ustees of 

e are suffi-> 
idence be^ 
lent action, 
e agents of 
ts upon las 

lums in the 
to the pur- 
states that 
lance of an 
jy the Ses- 
•ew the ba- 
^nds, and 
of wages, 
priation of 
if the plain- 
le received 
B soon as 
^rmined to 

Insttbem: yet 
n ia LowfieU 
in a precisely 
fad 79), where 
it will readily 
)• a rule more 
the course of 

ibat, Ihough, 
'ssory in tres- 
kre may be a 

le justified by 
int withnaiuo 
ets an assauU 
ihe poor mab 


J>f the plaintitf. He dianged bis detemifha. 
lion before he had done so, and applied it 
otherwise. His insolvency followed some 
«ays after ; and at the date of the iusolven- 
cy, which IS the true time to which such s 
aaim for preference must always be referred, 
there was no appropriation of any monies, 
c:b ®r .security whatever, to the demand 
of the plamtifT. 

it IS hardly necessary to say, that rent 
received by a general merchant, in the ca- 
pacity of an agent for the landlord, forms 
in Itself no claim to priority of payment, and, 
unless particularly set apart, merges in the 
general mass of the insolvent's effects. 



Trustees of Trbk< 
BtliTT & Co. 

John Sqv are against Matt. Morey & Co. 

J-iJJ^J^'^*" ^SJ.'«»^*> '•ecover the sum of 
xa,7 1 J ibs.Od, J he circumstances attend- 
lS?.*t^''® ^" particularly adverted to by the 
f^/uej Justice, who said :— 

This is an action to recover the amount 
of certam bills of exchange, which wer^ 
drawn by the defetidants in favour of Varioiis 
persons, m the years 1814 and 1815, and 
came, in the course of negotiation, to the 
hands of the plaintiff, by whom they were 
presented at the place appointed for pay- 
ment, and were refUsed; consequently, it 
falls upon the defendants to excuse them- 
selves from a liability apparent upon the 
face of the transaction. Two objections ar^ 
raade, one goes to the merits of the actioh. 
the other, if allowed, would stop it at the 
threshold of the Court. It has been stated 
that there isasurt pending in England for 
the same cause which is now before me If 
tuis >¥efe proved, i should certwnly consi* 

September 14/A. 

A and B are 
partners in trade ; 
Ihe first residing ia 
England, and the 
other in New* 
foundland. B 
drawls a number 
of bills, on partner- 
ship account, upon 
A, who accepts 
them, but after- 
wards refuses to 
pay them. With 
a knowledge oC 
A's intention to do 
so, and, in fact, aC 
his particular de- 
sire, C. purchases 
the bills, and then 
brings bis action in 
against A St B.— ' 
Held that he ia 
--^ivwitsSu to iScoyd? 
upon tbem. 

I\ ' i 

i . 






JdOBBY & Co. 



rfer it as an abatement of the action : but 
the parties have had sufficient time, not only 
since this case was first brought before the 
Court, but smce the objection itself was 
raised, to have produced something in the 
«nape of proof, whether the suit said to b6 
peiHlmg on the other side of the water is 
lor the same cause, and between the same 
parties, as the present,~in short, what that 
suit IS. To say merely that there is a suit 
between the parties, and to say no more, i4 
-pleading historically." as Lord Hardwick 
expresses it, - without any averment or 
certamty which Courts of equity and laiv 
both require. ' 1 must, thereJore, dismiss 
this plea, although with reluctance ; for a^ 
the parties are all in England, it won? 
r^ . ^.fe^® ^«en more advisable to adi;.-i 
their difference there. The principal defence 
IS upon the merits of the case. And it is 
sufficiently brought to the notice of the 
, ""^.^y the evidence on the part of the 
plaintiff, who has travelled a little further 
than was necessary into detail, how he came 
to take up the bills in question, and why he 

c uM?"l**^ ^^^ ^^^^^^ **«••«• The holder 
ot a bill of exchange, is always presumed to 
have come fairly by it ; and where it was 
ongmaUy given for value, the want of con- 
sideration can hardly be averred by the 
drawer Against the holder; who, if the bill 
be dishonoured, has his choice of action 
agamst all or any of the parties, without 
assignmg his reasons for pursuing one of 
^^^}?Vl^i^T^^ce to another. But, as the 
plaintiff has thought fit to enter into the 
pnvate history of his case, it is open to the 
defendants to take advantage of anything 
MThich may anse out of it, to defeat the ac- 
tion; and,certainly,it is a case very singular! v 

circumstanced, in wKi^K ««^rvf*u^ iLr_-y 
_. J _„ ,, „,^.„ vx*v VI MIC ucicuu* 


clion ; but 
ne, not only 

before the 

itself was 
bing in tlie 
L said to b<6 
le water is 
n the same 

what that 
re is a suit 
10 more, ii 
erraent or 
ty and law 
e, dismiss 
'e; for as 

it won' 

to aclj; : 
al defence 
And it is 
ce of the 
)art of the 
tie further 
w he came 
id why he 
le holder 
isumed to 
re it was 
t of- con- 
i by the 
f the bill 
of action 
I, without 
ig one of 
It, as the 

into the 
n to the 

the ac- 

~ icfcud ■ 


hnls determines before-hand to protest bill^i 
for which he was, prima Jacie, liable as the 
partner of the drawer, and fixes this liability 
by accepting them ; and the plaintiff, with 
a full knowledge of this determination, 
comes forward, at his request, and takes 
them up, avowedly for the purpose of their 
being protested and sent back for recovery 
to this island. Such a transaction might be 
ftll very lawful and correct, but it is certainly 
Very suspicious ; and if it had rested here, 
I should have felt myself called upon to 
suspend the judgment of the Court, until the 
defendants should have an opportunity of 
proceeding by some course in the nature of 
a cross-bill, to probe the case to the bottom. 
But the circumstances set forth in the plain- 
tiffs affidavit, must have been sufficiently in 
the knowledge of the defendants^ to have 
enabled them to have put him to his answer ; 
or, at least, to have produced proof of 
the fraud which has been set up; and 
1 cannot, at this late season of the year, 
leave the case jpen to such a proceed- 
ing, without throwing it into another year, 
and departing from the system of sum- 
mart/ Justice, which is particularly enjoined 
upon the Court by the act of Parliament 
under which it sits. I must, also, bear in 
mind, that the law (.5th Geo. II., chap. 7), 
which allows the affidavit of parties inte- 
rested in England to be evidence in the co- 
lonies, has, in this instance, furnished the 
personal testimony of the plaintiff directly 
negativing any presumption of his not being 
the real party to this action. He swears 
distinctly and expressly, that the sum de- 
manded on account of the bills, is justly due 
and owing to him ; and in this statement he 
is corroborated by the admission of the de- 
fendant, PrideauXf who goes on to affiriPi 




MORBY & Co< 



^1 * 





that lie had no eflecls oi Matthew More^ ^ 
Vo. iA hm-hands, as it would seem, for some 
time before the date of the bills, and that he 
bad given positive orders to h's clerk id 
refuse any of their bills which might b^ 
presented for payment; and he did so> 
because he was desir<ous that th^ s'lms 
for which the bills were drawn, should 
be paid ; but as there were no'etfects in JEng-r 
land to meet them, that they should be paid 
out of the property in Newfoundland. H 
was competent to the plaintiff to take up 
bills so circumstanced ; and he mjght law-^ 
fully do so with the view of befriending Qfie 
jparly, provided it was not done to defraud 
and injure the other. Nothing in the shape 
of fraud has been proved. Any suspicion 
which might be raised upon the affidavits) 
produced, is cleared away by the affidavits 
themselves; and' as there were no effects m 
the hands of the drawees to meet the bills 
at the time of their being di*awn, it has not 
beenmade to appear in what way. the de- 
fendants have sustained an injury. \t does 
not appear to me, therefore, that the defencQ 
can be supported upon these grounds; and 
with respect to the remaining objection, that 
the defendant, Prideauxrif* a. partner of the 
plaintiff in the bank at Kingsbridge, that 
fact is not proved ; and if it were,! do not • 
see how it could affect the present action, 
which is founded entirely on a distinct trans* 
action. ' 

Under all the circumstances before the 
Court, I shall give judgment in favour of 
the plaintiff in the atnount demanded ; 
recommending the defendants, if they are 
dissatisfied with the decision, to appeal to 
England, where they will be enabled ta 
supply any deficiency of evidence, and to 
coii'tict any errors of thisCourt^ 

for some 
I tbdt he 
clerk to 
night be 

h^ s'ima 

\ in JBngr 
I be paid 
and. M 
> take up 
ight law* 
ding one 

^e shape 
fffects iti 
the bills 

has not 
'the de- 

j|t does 
ds; and 
ion, that 
Br of the 
Ige^ that 
1 do not ■ 
. action, 
ct trans- 
fore the 
vour of 
landed ; 
they are 
ppeal to 
bled ta 
and to 



October \tt. 

Where ♦here are 
two leases of the 
same property, tliR 

trustees, i i case of 

Exparte William Haly, Esq. in the matter 
of Jambs Johnston's Insolvency. 

ffiUTCHJNGS leased certain ground to 
J nomas Williams, who underleased part 

thereof to one Johnston^, for a certain term ••— ^ -, -. 

of years, having a few months less to run '""'^'^^n'^y' "*a:- 

than miliamis own lease. '"•'*^ I" ''"^ "?'" "'"^ 

IT , 1 • .• , , . rorect the otlitr 

Hutchings died, and the ground leased to 

Wihtams devolved upon Colonel Hali/, who, 
by deed, covenanted to extend Johnston's 
term for ten years after the expiration of the 
lease to Williams; and Johnston also cove- 
nanted, during his lease from Williams, to 
erect certain buildings on the premises. 

Johnston is become insolvent, and I he 
trustees desire to dispose of the first lease 
to Johnston, but intend to give up the ex- 
tended lease, or rstiher lease oovenanted to be 
extended by Colonel Haly. Colonel Hulu 
prays that they may be obliged, to dispose of 
both together. 

Per Curiam. The trustees have a cleat- 
right of choosing whether they will take 
both of the insolvent's leases or not. Now, 
supposing they gave them up, Mr. Williams 
will be entitled to the residue of his term, 
free from any after-engagements of Johnston 
with Colonel Haly, The only question 
then is, can the trustees retain the first 
lease, and give up the second? 1 think they 
can ; for, in the first place, by so doing they 
may benefit the insolvent estate, and can- 
not place Colonel Haly in a worse condi- 
tion than he would be in were they to g. ve 
up the lease to Mr. Williams. 

But upon the general question, I think the 
assignee of the first term would not be liable 
to covenants reeiepvpr] with n nour no^i,. ;» ... 

new deed, and with reference to a mew ea- 







W. Haly, Esq. 

in (be matter ol 

J. Johnston's 



tate, not yet in being, and not even to comr 
mence, at the expiration of the first, for 
the residue of Mr. Williams's terra will 
intervene, and the property actually change 
masters before the new estate, upon which 
the covenant is reserved, is to take effect. 

1 must, therefore, decide that the trustees 
may elect and dispose ot the one lease, dis^ 
charged from any covenant in the other. 

November IWA. 

A person who, 
since (be year 
1685, has built and 
made a hoase, sir 
ges, and oth^r con» 
veiiiences for (he 
fishery, is entitled 
peaceably and 
quietly to eojoy the 

The King o^aiw«< Thomas Row. 


^ PON a full hearing of this cause, the 
Court g»ve the following judg«:aent :— 

This is a proceeding on the part of the 
crown, to abate a fence lately run by the de- 
fendant across a part of the water-side on 
the soiUh of this harbour, and claimed by 
him as private property ; butwhich, it is con- 
tended, is a public cove, or landing-place, 
and as such has been used, time out of mind, 
by all His Majesty's subjects, and particu- 
larly for his naval-yard. It is brought by 
the Crown, as the guardian of the rights of 
the community, and not as the sovereign 
claiming an exclusive property in the soiK 
I shall, therefore, abstain from entenng into 
the general question, as to what is real pro- 
perty in Newfoundland ; a question which 
has been carefully avoided by all my^prcde- 
cessors, and which 1 am not disposed to in- 
vite. Whatever may be the quantity or qua- 
lity of real estates in this island, it is certain 
that the statute of William authorises any 
subject to make a fishing establishment oa 
any part of the shore which had not, 
within a given period, been used by the 
fishing ships ; anv* quiCvty t,o 'ise &n_ eDjoj 
the same for his fishery. ' ' '^^ 




a to corn- 
first, for 
term will 
ly change 
)on whioti 
B effect.^ '\ 
le trustees 
lease, dis- 


:ause, the 
nt : — 
art of the 
by the de* 
ter-side on 
claimed by 
h, itiscon- 
at of mind, 
id particu- 
brought by 
e rights of 
I sovereign 
n the soiK 
itering into 
is peal pro- 
ition which 
I my prede- 
losed to in- 
tity or qua- 
it is certain 
horises any 
lishment on 
had not, 
sed by the 
g and enioy 


The defendant rests his case principally 
upon this statute ; and if the facts of it 
bring him within the act, he certainly has a 
right to enclose the place which the law has 
exclusively entitled him to hold. The case 
before me depends upon its facts, and I shall, 
therefore, begin with the defendant's evi- 
dence, as first in the order of time. 

It is stated that, in the year 1768, the de- 
fendant, or his predecessor, having occa- 
sion to erect a fishing-room on the South 
Shore, and desirous of ascertaining how far 
it was necessary to keep from the naval 
yard, was informed by the gOTemor that he 
might approach as near as twenty feet of the 
eastern boundary. This information he re- 
ceived in writing, and caused to be indorsed 
on what is called a grant, from the same 
governor, to build other fishing-places. In 
the following year, 1769, there is a similar 
instrument, confirming the defendant in the 
possession of the place in which he then 
carried on his fishery. These instruments, 
which can hardly be considered operative 
as royal grants, are of use, however, as evi- 
dence to show the first intention of the 
parties, and the probable time of possession; 
and 1 must own it as my impression upon 
them, considering the situation of the place 
in question and its acknowledged conve- 
nience, indeed its actual connexion with the 
defendant's rooms, as forming part of the 
front of his flakes, that the defendant most 
probably took possession of the place ac- 
cording to the intention of the governor in 
1 768. Following the course of evidence, it 
appears that for the last twenty-nine years, 
the defendant has occasionally erected what 
is called a •• summer flake " over the dispu- 

fori C!t\nr>a ^ff n>Mo..nJ . 4l.n^ it~^ l«~i. ^_I 

was built in the year 1811 ; since which per. 



If \mm* i W ^B H " 




i * 






nod it has been used more particularly for 
hauling up boats, for which the defendant 
had a greater occasion, in consequence of 
having reduced his number of barking ves- 
sels. So far the evidence of the defendant 
goes to support a long and peaceable pos- 
session of a place actually used in, and es- 
sential to, his fishing establishment. 

On the part of the Crown it is stated that, 
in 1804, a survey was taken of the several 
fishing-rooms in the harbour of St. John's, 
and, among others, the defendant's is laid 
down in the plan, in which the space in ques- 
tion is not included, but appears as an open 
cove. But this plan in itself, however, made 
under very high sanction, cannot bear down 
positive testimony, directly contradicting 
any presumption which may be collected 
from it. The statute giving the title which 
is now claimed, requires no registration of 
property to make it valid ; possession peace- 
ably acquired, and use in the fishery, are the 
best title-deeds which can be produced in 
Newfoundland. The evidence of Mr. Bol- 
irooky on the part of government, is too re- 
cent to meet the statements of the defend- 
ant's witnesses. He proves that one of the 
Kin'^'s anchors was laid upon the disputed 
ground, in 1812. But with what view was it 
laid there— as a boundary of property ?— It 
was for the purpose of hauling up a mer- 
chant ship which had arrived in sinking 
condition, and required to be immediately 
run ashore. The mere fact of putting down 
an anchor for such a purpose, and leaving it 
there, proves nothing. It is a circumstance 
capable of explanation from the recency of 
its date ; and it has, I think, been explained 
away in the very intention for which it was 

:_; ii« loir! flAwn namplv. not as a mark 

or boundary of property, but as the means ot 


cularly for 
Equence of 
irking ves- 
:eable pos- 
in, and es- 

itated that, 
the several 
St. John's, 
it's is laid 
ice in ques- 
as an open 
ever, made 
bear down 
3 collected 
title Mrhich 
istration of 
ision peace- 
lery, are the 
roduced in 
)f Mr. HoU 
t, is too re- 
;he defend- 
one of Ihe 
he disputed 
view was it 
)perty ? — it 
J up a mer- 
in sinking 
iitting down 
id leaving it 
3 recency of 
in explained 
vhich it was 
)t as a mark 
he means of 


aiding a ship in imminent danger. — Mr. 
Holbrook goes on to say that he always 
knew the cove to be used as public; but his 
experience does not go back for more than 
six or seven years ; and it appears that 
what he considered as a right, was frequent- 
ly complained of by the defendant as a tres- 
pass. If the place in question had been 
public, It seems natural to suppose that it 
would have been easy to prove it so by the 
testimony of many witnesses, whose length 
and locality of knowledge would have pla- 
ced the matter beyond the •reach of doubt. 
As it is, 1 am of opinion that the defendant's 
case is within the protection of the statute 
ofWilliam; and I must, therefore, determine, 
in the words of the Act^ that the defendant 
having, since the year 1685, built and made 
a house, stages, and other conveniences for 
fishing (which appear to have included the 
space in question), is entitled, peaceably 
and quietly, to enjoy the same to his own 
use, without any disturbance whatever. 


Peter Lahy against Francis Tree. 


^ HIS action was brought to recover the 
sum of £5 \As,9d.y amount of servant's wages, 
under the following circumstances, 

iMhy was shipped by the defendant for 
the summer of 1815, for a certain sum ; and 
at the close of the year, took sfti order on 
Shannon Sf Co, for balance of his wages, 
which he received from them in a bill of 
exchange, and which bill was protested. — 
Defendant contended that he was dischar- 
ged under the authority of the case of 
Meany v. Pynn^; but plaintiff insisted that 

* Ante p. 66. 

The King 



November 20M. 

If anindependv 
ent planter gives a 
servant in the fish- 
ery an order upoo 
a mercbanl for the 
payment of his «a« 
ges, and the ser- 
vant takes from the 
merchant a bill of 
exchange which is 
afterwards protest- 
ed, the planter still 
continues liable to 
the servaat for bit 


': f. 


Peter Lahy 


Francis Tree. 


defendant was an independent dealer, em- 
ployed his servants upon his own responsi- 
bility, and sold liis tish to whom he liked; 
and, therefor ', that the decision in that case 
was not appli -able to the present. 

Upon these facts the Couri adjudged, 
that, by the 15th Geo. III., the employer 
was obliged to pay the one-half of servants 
wages in money, or good bills of exchange 
upon Great Britain or Ireland^ That the 
defendant, acting for himself, as an inde- 
pendent employer, and not as the agent of 
any particular merchant or receiver, was, of 
course, bound to follow the directions of the 
statute. He had not paid money, nor had 
he paid bills, and, therefore, he would be 
liable to the servants, unless it could be 
considered that giving an order for bdU 
was tantamount to giving bills ; in which 
case he became party to the bills, and must 
be considered as guaranteeing their being 
good. The defendant was liable to the 
plaintiff for the amount of his wages, agree- 
ably to the provisions of the act. But, inas- 
much as it had been (nade to dppear that 
the first fish and oil had been sent to Shan- 
now, Levingston Sf Co. to meet the order for 
servants' wages ; and as the statute express- 
ly made *' the fish and oil subject and liable, 
in the first place, to payment of wages," the 
defendant is entitled to take the benefit of 
the clause, and claim upon Shannon Sf Cos. 
estate as for servants* w,age8 of the year 





ealcr, em- 

i responsi- 

he liked ; 

I that case 

F servants' 
'' exchange 
That the 
J an inde- 
16 agent of 
er, was, of 
ions of the 
y, nor had 
> would be 
t could be 
Dr for bills 
; in which 
, and must 
their being 
t)le to the 
ges, agree- 
But, inas- 
3lppear that 
it to Shan- 
te order for 
te express- 
: and liable, 
jvages," the 
e benefit of 
non Sf Co's. 
)f the year 






HIS action was brought to recover one 
year's rent of premises, situated in water- 
street ; and the defence to it rested on two 
grounds. First, that the house for which 
the rent was claimed, had been consumed 
by fire, and, therefore, that the lessee's obli- 
gation to pay rent was at an end, under the 
custom of this town. Second, that the ground 
upon which the house formerly stood, had, 
since the fire, been appropriated to the use 
of the public, and now actually formed part 
of one of the streets. To establish these 
two points, the defendant called 

Thomas II. Urooking (sworn). Witness, 
as one ot the attornies for the piuintiflT, had 
conversation with the defendant; and it was 
the opinion of both, that thejire having des' 
troyed the premises, had cancelled the lease. 
An account Avas stated by the defendant, 
and given to witness, charging himuelf with 
rent up to the day of thejire (the rent was 
payable every 20th October) ; and had the 
money then been offered, witness would 
have accepted it^ and considered the lease at 
an end. 

Geo. Lilly (sworn). Witness drew the lease 
in question. He intended the lease to operate 
merely so lon*^ as the house was in being. It 
was generally understood that a Jire extin- 
guished the lease, and, therefore, there was 
no express clause to such effect. 

Cross-examined. Considered that if the 
premises were burnt, it avoided the contract 
altogether, and that the landlord would 
have a right to re-enter, althou.i]rh the lessee 
should wish to retain the ground. 

James Simms (sworn). Confirms tLjstate- 


December 1th, 

Where, after a 
liniiso liad been 
desiroyeJ by fire, 
liitt K't^uinl 01) 
which il stood was 
converted into a 
public street, and 
the acts of tile les- 
sor's aiicnt alst* 
amounted to 
" suniethin;; very 
like an acceptanc* 
of tho surrender of 
the lease," the les« 
see is discharged 
from his covenant 
to pay rent. [Seu 
the case of J. 
Broom v. Preston 
ifStabb, decided in 
the Supreme Couil, 
i:Uli Au|just, 


. 5 






mcnt that it was the opinion of all persons 
ill this town, that a fire put an end to the te- 
nanlcy. That he has been in the habit of 
making many leases, and knows this was 
the prevailing understanding. 

In pronouncing judgment for the defend- 
ant, the Chief Justice said : — 

The Irssors agents (who executed the 
deed) having done that which amounts to 
somethin very much like an acceptance of 
the surrender of the lease , and also the 
ground on which the house stood, being ac- 
tually converted into a street; so that the 
defeiidant could not use the ground, or re- 
build qn it, if he wished to do so ; I think 
that this action cannot be sustained. 

Dtcemhtr 1th. 

Tn a case whrre 
the fomimssioners 
of tlie customs had 
exprrsseii a disin- 
chnation to enforce 
a bond given by a 
party who liad 
bepn (Siiilty of an 
infroctMxi of an act 
of Patli&meni, iin- 
ilfr circinns'ancfs 
which necaiived 
•fery presumption 
of fraud on his 
part; the Court 
considered the 
bond as cancelled. 

A. H. Brooking, Esq., airainst Charlei 
l\. Byrm; and 11. Job. 

This was an action to enforce the penalty 
of a bond, under the following circumstan- 
ces. The defendant, Byrne, master of the 
ship New Century, arrived at this port sonae 
time since, from Liverpool, with a certain 
quantity of bread on board, consigned to tbe 
other defendant. Job. The vessel and 
goods were regularly cleared by the custom- 
house at Liverpool, with the exception of 
500 bags bread, for which there was no 
cocket. The plaintiff being doubtful as to 
his power to admit the said bread to entry 
without the regular cocket, and at the same 
time, believing that the cocket must have 
been' left behind, as it could have ^een 
had, as ft matter of course, at the time 
of clearance, took a bond from the defend- 
ants in hifi own name, conditioned for 
the production of the cocket. It turned out, 
however, that the cocket had never b«en 


1 persons 

to the le- 

e habit of 

this was 

3 defeud- 

?uted the 
nounts to 
eptance uf 
also the 
being ac- 
o that the 
id, or re- 
; I tliink 


16 penalty 
er of the 
port some 

a certain 
;ned to t^ie 
essel and 
le custom - 
ception of 
e was no 
btful as to 
i to entry 
t the same 
must have 
lave ^een 

the time 
le defends 
tioned for 
unied out, 
.ever been 


taken out, and the present action was 
brought to enforce the bond. 

'J'here was a letter from the commission- 
ers of the customs laid in evidence, by whicii 
it appeared that they had expressed a disin- 
clination to proceed against the parties. 

'J'he Court, having heard the respective 
parties, cave judgment, in subbtance, as 
follov ) : — 

^ T! is is an iCtion on the equity side of the 
Court, o eirorce the penalty of a bond 
given i; I tlie ;>roduction of a document from 
tlie cu.' jm-house at Liverpool, as to the 
whole of the bread which was imported into 
the island without a cocket, having been 
laden in England, pursuant to the statute 
4th George III. The defence that this sta- 
tute was not imperative, and did not cause 
a forfeiture, was not tenable. The act pro- 
vided remedies at several stages ; first, in 
forbidding the clearance of all goods not la. 
den in England, for the colonies. Secondly,' 
in making any goods whatever, liable to sei- 
zure, as forfeited, as soon as they arrived, 
without a proper clearance, within two 
leases of a colonial coast. It fixed the 
limit at which the forfeiture accrued, and the 
seizure might be made at any time after. 
[Vide Lockyer v. Offley, \ Term, Rep. 252.] 

That the objection as to the bond, being 
conditioned to perform an impossibility, by 
producing what never was in being, was a 
mere quibble. The custom-house at Liver- 
pool might have given the document re- 
Suired, which would have satisfied ihebond, 
lut as the commissioners of the customs 
had signified a disinclination to proceed on 
the bond, the Court must consider them as 
virtually exercising the power vested in them 
by the 61 Geo. 111.: and as tliAro wqc « t/^toi 
absence of all fraud against the revenue, the 
Court would consider the bond as cancelled. 




livRNu cv Job. 

i I: 



^' ^' ^' ^^^^ ^'l ^?^inst Miller, Fer- 

December 9th. «: <- O. 

l)eBu,y.c.i,.c,„, „,,'„„ i, f " from the following decision 

"' y*' n. Duties, Ti„^ gi . 

accompanied bv a , * ^"^ Curiam. — Tlii<5 i« o« *• 

threat SfattaZ^ "t>y the plaintiff as rnl ! f '^'^i'^i" *''*«"&»»t 

t'.e fish belon^i^J Hospital du fes to r! *'*'' ?^ Greenwich 

not complied wjib ^ "e defendanta o«« ^ ='»«»"tes. — 

»"« ajseit of Z* land, eAtenSvelv .r "^T'^^^ls of this is- 

clefeDdants agrees, for what intVl i°^?^"' '"•««"««& Supplies 

n.™ ...pioye,, ty Lndedoi ,iL ^'!*""''='' Hospital dc- 

pursuance Of this '"^nt'*. for all the fi^hl ^^ ®^ ^'^- P^r 

a.-menf. draw': defendants rstafnfttrr^PP'^^ ''^ ^^^ 

* bill „pon the de. WeiP rnm^i; i^^Pf "»»' UnleSS this DrODOSil 

fendanis for .he ♦ ! Compiled With, he should ho ^iV- J 

amount thereof ^"^ ^^^tach their Jish To th;, J 5^*''^®^ 

-hich Is reSd r"^« at first Sted nn^ "^^"J^?^' '^''^- 

P;yment by ,hem. ship of payin- tnonev f^ "'^^*^ "*^ ^ard- 

^-.'dt that the in debt to I .V^- ^^ , '' Persons who were 

plaint ff coiiM „„. . "\"' 10 Ins princiDa s f/.H ♦l>„: ,.*^*^® 


^!i ;fr 

lOBDine sum which *""«• "'s instructions Vwh.-^i, i "^ . ^'°*^ 
had been ..,u«iiy Were to attach thrfiVN*'^ \ ^"^ *« ^nfor. 
stopped and de/ into executlnn I ^^'"'^ ^'^'"'d be carried 
tained by defend. ney-llT ', ''^ ^^nsented to pay the mn 
•n's'agent from the T^ ' ^"*^ «» t*»e 29th of Octohpr Ll " 
fis!,.rmen on ac! ^^^-^W a bill of exchan-e nnin /u ""^^r^S"' 

count of the duty, ants in St Jnhn\r P^\^^^ ^^^ defend- 

[See .he decision'^ This bdl Was pre^eitlH'/^" '"•" demanded, 

^hich were given refused an,i M °'®^ ^'°'* acceptance but 

>n the Supreme "' an" the present artmn ii^lTi ' 

Court In i826.Tn '"^cover the amount hi. ? '^brought to 

-emal import;.,; defendants that their i '^l^^'^'tted by the 

rh-;Sr '^ ^-- ^"'« "Pon ^em^f rdrTheTeK 
:? r (J^^l^^«:?— - -3 I.ana ana .,..,.,,, , ,, ^^^^^^ 



nst MiLLEB, FeR- 

'ill be satisfacto- 
>IIowing decision 

» action brought 
»>• of Greenwich 
r the sum of £42 
inge, drawn un- 
nces: — 

lanis of this is^ 
nssuing supplies 
^e fishery, which 
by means of an 
(ember, the de- 
h Hospital de- 
emon, a written 
'ty of Qd. per 

Hipplied by the 
ss this proposal 
uld be obhged 
demand, Ste- 
rged the hard- 
ons who were 
heir suppHes; 
' am to inter, 
uld be carried 
pay the nio- 
ber following, 
i the defend™ 
« demanded, 
eptance, but 
is brought to 
nitted by the 
18 authorized 
therefore, no 

to the paymenk 




payee, X^X^^eL^L^nirr ^ 
fendantscanavnil V»i i P'^"""» the de- 

f'om the drawpr IP ^' claimed 

teral nndertakln^ J ^'^' .°'* "P^'^ '^'s colla- 
r^nsl .:.u^*"^ ^<^'* another, which i« til 
case m the present action, f he act nf P 
liament under whiVh *k1 *i / • , of Par- 
directs it to be patj ^."zf "^^^^ »« demanded. 

to ite provisions If ti!J r ^^***'*» subject 

able in .he'p?ese„/ck tlf;7j bvZl''T 
masters whom thp rf»B.„J . >>y the boat's 
the latter can only be mar? l"??''*''. and 
press undertakin/ ,,'"*''* '"We by an ex- 

-changeTat Tlfey i wCS ae'lhr'"" if 
•heir agent, for the pavmenl „f 1h ' t^""}«^ 
money demanded o?.h? J ■ *'"' hospital 

consi Jeratr t'thl "uTdSSi ^as ^ 

How f„ ?"e process oJaT'l*'''' "*"'• 
have been lemllJ .tl attachment could 

ive dSr^^^wLre TheT"'' ''"V^P***- 
-as its existence .o'tir^^rorthTkl^g'' 



Lb Gbyt 


Miller, Fergus 
& Go. 

? .' 


which limits it, however, to cases where the 
cause of action exceeds £5, and is sworn to 
by the party. It is equalJy unnecessary to 
determine how far the persons on whose 
account the duty has been demanded, and 
who are all stated to be boats' masters and 
their children, or sharemen, employed in 
open boats along this island, may fall within 
the meaning of the act. The Court is in 
possession of an opinion of Sir P/«i7ip Yorke, 
that all persons whatever, engaged in fishing, 
are liable to the duty ; but it cannot help 
thinking, from the unqualified language of 
that opinion, that the exceptions contained 
jn the 10th Anne, chap. 17, and which are 
there confined to open boats on the coasts 
of Great Britain and Ireland, had not been 
extended to the colonies, at the time that 
opinion was given ; and it is the more in- 
clined to believe so, as Sir Philip had been 
many years t^ttorney-general, before the 
passing of the 2d Geo. J J . Indeed, the case 
put for the opinion of that great lawyer was 
upon the construction of the statute of Anne, 
and it is hardly supposable that a subsequent 
statute, passed so recently, and for the 
express pui|>o of extending the provisions 
of the former act to the plantations, should 
have been overlooked, if it had been in be- 
ing at the time. The case before the Court 
turns principally upon that part of the clause 
of the last-mentioned act, which directs the 
duty to be paid by the masters and owners 
of the vessels subject to its provisions, and 
for that purpose authorises them to deduct 
the payment from the wages, shares, or other 
profits of the persons liable to the duty, if 
such persons shall be entitled to any wages, 
shares, or other profits. U, therefore, the 
persons on whose behalf the duty was de- 

^^--j rr-^iw MVi ^«iiUcu lu iiuy iaaar€S| 



cases where the 
and is sworn to 
unnecessary to 
rsons on whose 
demanded, and 
its' masters and 
n, employed in 
may fall within 
he Court is in 
\r Philip Yorke, 
faged in fishing^ 
t it cannot help 
led language of 
tions contained 
and which are 
ts on the coasts 
1, had not been 
it the time that 
is the more in- 
*hilip had been 
il, before the 
ndeed, the case 
eat lawyer was 
tatuteof Anne, 
it a subsequent 
and for the 
■ the provisions 
tations, should 
lad been in be- 
;fore the Court 
irt of the clause 
lich directs the 
ers and owners 
revisions, and 
hem to deduct 
ihares, or other 
o the duty, if 
'o any wages, 
therefore, the 
duty was de- 
to any shares, 




there was no original cause of action against iftift 

the masters of the boats in which they ^were v— ^^^ 

cTnSatior'f.'T^.^"^"^*^' thereUno "nX:r 

In^lT ; ,i ^*'""*^^'* "P^n forbearance «• 

Jn order to determine this point it wiH h^ Filler, Fergus 

proper to take a cursory view of the rda "on "^ ""'' 
of suppliers and iishefmen. as established 
by the usages and law of thi; island It has 

ff i /; °^^^««^"«« for a fishing voyage 

ieLf'''"'^ ^^^ ^^ i*« foundation in the 
necessary connexion of the parties Exm 

rience has proved that the^verrexis^^^^^^^ 
of the sedentary fishery deoendi .m^!. fk- 
principle; for it'is theToIeXunttrVthe 
mef n??i?' ^^"^^q'^ently, of the emp oy! 

tates ; and it is guarded with so much strirr 
ness by the Courts, that a judgS at i^^^^ 


be Jn satisfied '^" ""'''""' ^"P**"^' ^^^ 

ed^t^o^^thi^l ""^ P'r°"'' ''^^^^ "a™^s affix, 
nVr?* 1 5 ^^''^.'^^ accounts demanded as 

CoTV''''' ^"'! ^^^" exhibited to the 

^TLr^ f^ JV' T"^"" *°«^ their sup- 
plies from the defendants, and emolovirl 

.rom hired smante iu .hi. iiportdlt pcliti! 



Le Gett 


Miller, Fergus 


cular that in ihe latter case, the wages are 
ascertained, and the duty imposed by pari i, 
ament attaches immediately ; while in the 
lornier, it depends upon the contingency of 
the voyage, whether any profits will arise, 
and, consequently, any share arise, out of 
Which the deductions can be made on ac. 
count of Greenwich Hospital. 

it appears that at the time, the demand 
was made by the deputy-colleclor, he was 
informed that some of the persons were in 
debt for supplies, but in consequence of his 
threatening to attach the fis?, in order to 
avoid expense the defendants agreed to pay 
the money. Now, supposing that he had 
proceeded by attachment, or any leVal 
couBse, could he have come at the fish until 
tfte lien of the supplier was satisfied?—! am 
of opinion that he could not,consistently with 
thelaw of the island, uncontradicted, or! 
rather, confirmed, as it is by the latter oro 
vision of the Act of Parliament. ^ 

^ In every view, therefore, which 1 have 

UkeTtLV^' \''' of my judgment, to 
take of the case, I am of opinion that the 
amount of damages should be limited to the 
sum paid into Court, together with the 

n \ 


the wages are 
osed by parlU 
; while in the 
lontingency of 
fits will arise, 

arise, out of 
made on ac- 

B.the demand 
lector, he was 
•sons were in 
quence of his 
b, in order to 
agreed to pay 
that he had 
>r any legal 
the fish until 
sfied?— lam 
iistently with 
radicted, or,^ 
le latter pro- 

^hich 1 have 
iudgment, to 
iion that the 
mited to the 
r with the 



In the case between Cowell&Macbraire ^^'^ 

Btrl!;^Mr 'rr^/"^J" -i-ction to re. 
the nlAJn^iff l''''^''' ^"%' t''e agent of 
the plaintiff, from paying over to th? piain- 
tiff the proceeds of a bilUf exchange wS 

tistctbn" Z'"" '>. '^ ^'^^ defenda'ntTn a! 

DhinH^«f ^ judpent delivered in the 

H Pc?f Z^''''"'' ^^ ^^'^ ^o»''t ; and he urged 

hese facts m support of his motion --^tfa 

i?s" rtl n%W,^'"r^^ "^r ^'^*^»' '^^d been 
insured m England to their full value and 

nlin^T""' f ^''^ insurance paid t^ the 
whcrtL'r^ '^^P^"' of tbe^ground on 
tTken ht th ''^"f?. ^^••"^^'•'y stoorl had been 

Meagher & Sons agaiuH Hunt, Stabb 
Pkeston & Co. 

nTsf a^lf^eltScri^^^^^^^ \ ^\ 

«otes, made dnnng7hetriluf^^^"'f^'''^ 

-Action to recover the sum of ^T^i i lo ^v. 
goods sold and delivered ^*' ^*''* 

hv^^^"' ^f"^/*" ''**''. **^^ «/ ^^^'//an^*, drawn 
by defendants on their house in iCgland 
(Case submitted to a special jury ) 
1 he sum demanded was admitted mH 

A great number of''witnessef werTe^u. 

Dtixmbur iith. 

Inj-in. tion crant- 
Court to resiraia 
an uf-cnt from pav- 
ii2 ovpr ro tiis 
principnl a si.iu «f 
money recnved hj 
>iim in satisfaotioa 
of a j'jfJpinut in 
favour of his pria- 
C'pal, Wlif re it ap- 
peared, from cir* 
cunisianct's not 
known to the We- 
fpndunt at the time 
of trial, that th« 
plaintifl^oiight not 
«o have the benf^k 
ot that judgment. 

December 1 1/A, 

A special jnrjr 
nn«. that before 
t'»e passing of the 
49 G;o. IK., c. 
~7, the custom of 
receiving a iuer, 
chant's bill m ^ay. 
ment of i debt 
due by iijin,, wflt 
general; but that 
f'nce that period 
it has noi bten so. 


H I 


Meaghkr Ai 



Hunt, Stabb, 

PRKSXON & €o. 


amined ia si^pport of, and against, the spe- 
<^»a; <^"st m. tat up as ll < defence. 

pare. 8iite ibe ca^e; question of lo- 
. cai custoDf ; iaw ofemioms; take a view of 
the iinglish law, in respect oflegal tenders-^ 
not good unless in the lawful current coin of 
the realm; e.en teA^io^'c* not lawful, un- 
ies, exprtsshf made so by act of Parliament. 

I robablfc on^hi of ihe /oca/ practice of 
giving IjUs. ^ 

lsr;.-™No rjjixulating medium. 2dly.— 
ihe circumstance of the first fishery being 
transient, and the proceeds not being realized 
until ioey got to England, where, indeed, 
the contracts usually originated and ended, 
3dly.— In the statute 15th George IIJ 
the emj;ioyer is allowed the alternative of 
paying the servant either in money or in 
bills of exchange, payable in England or 
Jreland. •' 

But the very passing this clause, negatives 
the argument that bills were a lawful tender 
before. However, it may account for the 
origin and continuance of the practice of 
paying by bills. 

But, whatever may be the origin, the 
questions now for the jury are, viz. :~ ^ 

Is there a fixed and universal custom 
among merchants upon the issue? and what 
IS the custom ? 

This question, confined to merchants and 
dealers in this island. 

4u^^u^\^^'.^^^^ ***® general question, whe- 
ther bills of exchange are a legal tender in 
all cases hat it is not universally so; but 
the ques. ci more properly resolves itself 
into vh?f!-- 

By .-,c!ieral understanding ofmerchants, 
in thfciTAtractsofbuying and selling, it i» 
consid'jv ? :ig the condition of sale, unless 
trie contr. V je expressed at the time, that 





inst, the spe- 

uestion of lo- 
:ake a view of 
^egal lenders — 
urrent coin of 
)t lawful, un- 
f Parliament, 
al practice of 

m. 2dly. — 
fishery bein^ 
jeing realized 
here, indeed, 
and ended, 
Qeorge IIJ., 
alternative of 
Qoney or in 
England or 

se, negatives 

awful tender 

ount for the 

practice of 

origin, the 
I'iz. : — 
jrsal custom 
! ? and what 

rchants and 

3stion, whe- 
il tender in 
ally so; but 
olves itself 


lling, it [h 

sale, unless 

time, that 



the goods sold are to be paid for in a bill of 1818 

exchange In all contracts of mere indiffer- >..J^^!^L^ 
ence in the eye of the law. and such as are Uek^^^ 
not contrary to public policy, the intention sSns"* 

of the parties must govern the interpretation „ "• 
</M6/em.. and ,f they are not expressed vZVosTc* 
at he time, Courts and juries must collect ^**"°« * ^"• 
that intention from the usage of the place, 
as being presumptively in the knowledge of 
the parties and implied in their contract: 

Mrong fact in support of such custom, 
hland *^ "^ circM/tt/o;y medium in this 

Notice proclamation as to dollars, and . 
briefly observe upon it, as not constituting 
anything more than an expression of the 
conventional value of which they would be 
taken and paid by Government. 

How, then, can payment be made? Court 
not aware of any means except by bills of 
exchange. ^ 

Supposing, then, the usage to exist that, 
m the absence of specific agreement to the 
con rary, bills of exchange are to be the 

. Upon this point, some diflference of ooi- 
nion among the witnesses, as to the usae^ 
whether the bills are to 'be approved by tlie 
creditor, or are to be the debtors own bills -1 

*t^?!u\^i^, ^^^ ^?''''^* ""^er the evidence 
that the bills must be of the parties^ owndraw- 
xngor indorsing. The credit was given up- 
on the aith of the solvencv of the debtor • 
and unless that solvency be^shaken by sLme 
fact or circumstance which intervenes t^e 

ZfJdf '""^ *' ""^^ <^ne^tensionoftheterm 
The whole case resolvable into this ques- 

r rrM f ^v- m m sb m 




I t 





Hunt, Stabb, 

Pkeston & Co. 


tioii : Is there siicli a usage as, in the ab^ 
sence of express agreement, may be called 
in lo expound the presumptive intentions of 
the parties, that the bills of exchange of the 
party to whom ihe credit was given must be 
taken in payment, without the creditor being 
considered as having the right of approving 
or disapproving the same ? 

The Jury returned the following verdict 1 
"The Jury find that the custom of re- 
ceiving, as a payment, a merchant's own bill» 
was general, previous to the passing of the 
act of the 49tli of the King, when the pro- 
perty of the party remaining in the country 
was a security, and would be applied to the 
payment of the Newfoundland creditors, 
prior to any others; but that subsequent to 
that period, the usage of receiving a mer- 
chant's own bill has not been invariable.' 

1 '•• 

'■•■ % 

December \2th, ^ EAGHEit & SoNs against HuNT and Others; 

Id (he absence 
of expresH agri e> 
ni' III among uier^ 
ctiaiits, It is one of 
•he implied con- 
ditionsof sale, that 
payment is to be 
made in bills ofez- 
ved or rijected at 
the discretion of the 
jMTty to whom the 
fayment is due. 


N this day, a motion was made by the 
defendants for a new trial, upon the ground 
of the verdict being contrary to evidence, 
and void, for uncertainty ; but it was refused 
by the Cliuf Justice, who said : — 

The simple fact forthe consideration of the 
jury, was this: — Is there such a custom in 
this island, as that the vendor of goods is 
bound (unless the contrary be expressed), 
at the expiration of the term of credit, to 
receive the purchaser's bill of exchange in 
payment ? The Jury have found that such 
a custom did prevail before the passing of 
the 49th of the King, which altered the law 
in respect of the preference given to New- 

JCUllOia, upuii illCU'IUUUUiUUv. 


estates f but that since that statute, the cus 

I w 


IS, in the ab* 
av be called 
intentions of 
,'hange of the 
iven must be 
reditor being 
)f approving 

ing verdict { 
istom of re- 
nt's own bill, 
assin^ of the 
en the pro- 
the country 
)plied to the 
d creditors, 
ibsequent to 
I'ing; a mer- 



and Others," 

lade by the 
the ground 

was refused 

•ation of the 

1 custom in 
' of goods is 
of credit, to 
exchange in 
id that such 
3 passing of 
red the law 
n to New- 

te, the cus- 

Meagher ^tE 

tarn had not been invariable; leaving it to ]81i8. 

the Court to determine, whether, upon the 

fact so found, it could be considered as a 

custom having the force of the law. Jt is 

one of the necessary requisites of a custom, 

that it should be continued; any interruption J^"^» Stabb, 

to it as a custom, causes a temporary cea- *^*^"®'* * Co. 

sing, and thereupon renders it void. Now 

the jury have found the time, since which the 

alleged custom ceased to be observed; and 

it becomes the easy province of the Court 
to say, that it wants one of the requisites of 

a legal custom, and is therefore void. 

l^pon a matter of so much importance to 
the mercantile community, it may not be 
amiss for the Court to explain its view of the 
]aw, as it may now be considered as seicled. 
It is this: that in ike absence of express 
agreements between merchants, it is one of tkc 
implied conditions of sale that payment is to 
be made in bilh of exchange, to be approved 
or rejected at the discretion ef the part^. to 
whom the payment is dme. 

JohkBbopuv against Attwood & Ha^nrjiis 

Decemher 12th, 

Unless some act 
|*M be done by tba 

I HIS was an actiott to recover the sum utr/^'iS 

of £36^^ sterlings upon the following guaran< 
tee :— 

Mr. John Urop9y, 

Sir,— We hereby guarantee io yon the 
payment of whatever just and lawful swrn of 
money is now due to you from William 
Casey, one-half (his fall, and the other half 
ihe ensumg fail of 1814, on condition of 
yoor making over to Thomas Duffy all^ yaw 


of the time limited 
for payment, toi«A<. 
but the knowledge 
of the surety, the 
inere neglect by 
bim to lake active 
measure! to eufore* 
payment from tba 
principal debtor 
will not relieve the 
iursfy from his ii> 
ability to pay the 




Att Wood & 





""*' ""nam Casey, master. 

Pro Attwood h Haynes, 

St. JoWb. October 25,1813.'""' *"""'• 

i. f'f^-^'^.L** J?'"'"'!^ states, that JVil- 
he'"p,Sff''Tr'P^t «-?'"« indebted a 

ZuW hi r ^^JT'^i "l *•"=•' balance as 

Principal died ; . and .h%,^"tLet nee'' 
this action wad : ought. "^yut-uce. 

Produces accounts between.- ophy und 
Casey, from 1807 to 1812, by wti^^^a ba 
lance is claimed of £369 11,. 9/ ^ ^*" 

by winch It appears that the (Jt^fenda * 

actually received two hundred and thltu 

pounds for the sale of the schooner JaiZ^ 

^^■nms, for defendants, states that thev 

rTT T "* ,^^ ^"^ny* wishing to disDose 
ofthe .f.«^ and buy another vessel, ih7de 
femlants acted as L's L okers. or agents in 
«olhng the schooner ^ane for £230 e'ud 

/of/in I81T n <^^'**^^/) name, but wa. 

S/ John's hI^?""'"^ ^r"^ ^"^ ^"tP^rt to 
at. John s.—He also produces a paber bv 

vjhich It appe. . that, in 1810, JirSance 
«„^ • • ^^^s guarantee vas given 



the schooner 


js, that Wil- 
indebtecl to 
the payment, 
ooner Jane ; 
»eir accounts 
ome to a de- 
ig to dispose 
lits to gua- 
balance as 
-ators. That 
; that the 

Vrnpky and 
vhich a ba~ 

s . Jmjtte'' 
and thirty 
Jr Jane, 
that they 
r their own 
io dispose 
ely the de- 
a??ents, in 
^230, and 
>vhich was 
3, but wa^ 
outport io 
paper, by 
e ualance 

'as given 

rj posses- 


sion of a schooner, as a security for his de* 
hiand ; and that security he relinquished at 
the express request of the defendants, when 
they gave their own guarantee instead of it. 
It is, besides, a strong presumption of some 
money being actually due from Casey io 
Brophy ; although, the parties not agreeing 
as to the amount, it was referred to arbitra- 
tors to adjust. The arbitrators were dilato- 
ry in their proceedings, and could never be 
brought to make their award ; in the mean 
time C cy died. Nothing then remained 
io be done, but to carry the case before a 
competent tribunal to determine the sum 
due from Casey to plaintiff; and unless the 
defendants can show something which has 
occurred, since they gave their guarantee, to 
relieve them from the effect of it, they were 
bound to pay the amount adjudged to be 

It is contended, that there have been 
laches on the part of the plaint! T, in not 
enforcing his demand in the life-timt of 
Casey. But it was necessary that the amount 
should be det( rmined before he could en- 
force payment ; and it does not appear but 
that he endeavoured, as much as he could, 
to get the award from the arbitrators. The 
delay was theirs, not his; md has not 
been attempted to show that he ive any 
indulgence to Casey, by extending the term 
of payment, or otherwise. Besides, mere 
neglect of active diligence to enforce pay- 
ment from the principal, will not discharge 
the surety (a). There must be some positive 
act done by him, £ .me extension » f the time 
limited for payment, without the knowledge 
or conient of the surety, to relieve the latter 
fro.a his agreement. It was on this ground, 

(a)6VM, 734. 



A rrwooD 8c 




Attwood ^ 


before the Court. '''^ ""^"^ <*°^ 

o.«i/°'u^.*^ opinion, that the guaraatee is a 
Inu t^^ H ''''"^ ^^^"^""^ agai„sTth7de?end! 
Xfntff r™''""'**r^'«'^'* debt to the 
& J* J" T?t*'"^u '^' «"«» dae from 
bv fL r ^^i^^^ ^y the amount given i" 
and whJ^^'"**^ '^ "'^^ defendants in 1816^ 

Jiidgmentfor the plaintiff, in the sum nf 
two Aundred and sixt^ght pounds tZhil 
imgs and eight-pence sterling, ''" 

Assignees of Rvan & Son against trustee. 
Jinnar^w, i8ia of Ryan & Sons. 

Where trustees, 
onder a composi« 
tion-deed. bad dis- 
property (bat came 
into ibeir bands 
•mong (be New*. 
loandland credilori 
at large, and retain- 
ed (be remainder 
•n salisfaotian of 
tbeirown claims aa 
creditors, tbe Ch. 
Justice beld, that 
the assignees uo- 
der a commissioa 
of bankruptcy in 
Eogland, could not 
recover the ainoual 
«f those payments 
trom th« (ruaiflM, 

F«iiie!», tne cnief Justice now delivpr«,i 
judgment m nearly these wordsT- '"'"^ 

ofT^'^ 1 ^« ^*'^''*" ''''°"^*»' by the assignees 

tTestate of 'jJP'^ V«c''"«' *^« trust^eT of 
aIaT °' ^^*"* ^ '^^»*. appointed bv 
deed of composition, at Ne;foundS for 

ZZh^^L'' ^'''^"^ ^^-'* interest L 
•the partnership property of /2«a« &- Som 

It appears that the parties wfre concerned 

in busmess, which they carried on in nTw 

foundland and at Liyerpool? iCider thJ 

■also carried on some business on comST 
s on, on account of the concern, bSt 

£• * --«wv »»tMii„« wtt wfciweea Li?er- 


5 present de- 
cided, and it 
the case qow 

uarautee is a 
t the defend- 
debt to the 
im dae from 
int given in 
nts in 1816; 
e confusion 
?at fire, was 
to be used 

(he sum of 
ds teus/iil' 

St trustees 

beard the 

' assignees 
h commis- 
rustees of 
•inted, by 
dland, for 
iterest in 
in TSew- 
ider the 
but not 
I Liver- 


|)Ool and Newfoundland; that in conse-' 
quence of embarrnHHments, Joseph Rifan en* 
tered into a composition with the principal 
creditors at Liverpool, in February, 1817, 
by which he agreed to pay the English cre- 
ditors a dividend of six shillings and eighth 
pence in the pound, by three instalments, 
out of the funds and effects of the Liverpool 
branch of the tirro. 

The creditors of the Newfoundland branch, 
hearing of thib arrangement, became pressing 
for a settlement of their demands, and by a 
deed of composition, dated at St. John's, 
28th May, 1817, Timothy Ryan, for him- 
self and his partner, Joseph Ryan, assigned 
all the funds and effects at Newfoundland 
to the defendants, in trust, for the benefit of 
all and every other the creditors of the said 
Timothy Ryan, and his said partners, under 
the firm aforesaid, for goods sold and deli- 
vered them in the island of Newfoundland 
aforesaid, or any other transaction with 
them within the said island, in equal pro- 
portions, ratably and proportionably. 

In pursuance of the last-mentioned deed, 
the trustees proceeded to collect the eflfects 
of Ryan Sf Sons in Newfoundland, and dis- 
tribute them as far as they would go, when 
some of the creditors ot Liverpool, not ha- 
ving come into the arrangement there, and 
the others not receiving the promised divi- 
dend, Joseph Ryan was declared bankrupt, 
and his effects and interests transferred to 
plaintiffs as assignees. 

As the respective branches at Liverpool 
and St. John's transacted business under 
the same firm, and seem to have been iden- 
tified, in a great measure, by the course of 
their dealings, it would have been right had 
the En&rlish creditors onnsiHonoH «k<^>n „<> 
tormmg but one house, and under the same 



Aflsigncfis of 
Ryan Sc Son 

TruitocB of 
JKyan & Sons, 






' ! 



Asignees of 
Ryan & Sop? 


Trustees of 
BvAN & Sons. 


batScv^'in'^rh ^''^^^ ^ commission of 
S S«^nf r .^^^"^«7' 1817. against Jo^ 
edituTu ^'TP?^'' andtohave follow- 
against §^.„^V declaration of insolvency 
ivTjJri VT^y ^y^^ in this island. But 

entred btoTl '"i ^'^^.^''^^^t^rP^rt of them 
eniered into a deed, in iln operation tendinn- 

to place the creditors of the two branches if 
a distmcl pomt of view in relation to the re" 

Kst^l?''''''* .P' Newfoundland eel 
receive «n'°^ "P ^^^ ^^^^ '*'* ^^^ ^^^^ view, 
IZoJ.T ^'^•Sn»"ent of the Newfoundland 
effects through the hands of trustees 

m.^Vr;.^^ . ^ circumstances, whatever 
might have been the true light ik which the 
two branches should have bein con^derec I 

ihTTff" ^''V^' ?"^*^^« ^^» ^« charged bJ 
>vbat effects they have actually distributed 
even supposmg the deed of assignment void 

want of a sufficient power in Timothy Ryan 
to Una Joseph Ryan by deed. Yet thf de- 
I^enJs .'r 'S'^^'^ ^^ considered as The 

^Jllor^rnff'''-^"^"* the defendants have 

l7ZffL\ ^'' '.' '.' P'^'^^d that they have 

hirpf. '^K*'"'^'"*"^ *^ their hands ; and! 

therefore, they must have judgment iv h 

faction onL^''^'yJ^^'' '•'''^^"'*^«'' ^»««ti,: 
taction of their own demands as creditors I 
tbmk under a full view of the whole clr- 
rZl^r.^^ '^"^ ^^«^» ^« they now stand. 
Wni *?''* '^^'% ^^^ ^«d« <>f J"«tice by 
distrbed'" P'^*^^^^'°S« <>f the trustees u/ 




nmission of 
against Jo^ 
ave follow- 
and. But, 
art of them 
on tending 
tranches in 
to the re* 
lland cre- 
arae view, 


which the 
isidered, I 
liarged for 
lent void, 
from the 
hy Ryan 
!t the de- 
ed as the 
id under 
ing pos- 

ats have 
ey have 
s ; and, 
. With 
in satis- 
iitors, I 
jle cir- 
T stand, 
»tice by 
ees un- 


Deputy-Sheriff of Harbour Grace against 
Thomas Pynn. 

%J PON a rule to show cause why the 
Court should not compel the defendant to 
deliver up the certificate of registry of a 
schooner called the Lark, which had been 
sold hy the plaintiff under divers executions 
from the Surrogate Court at Harbour Grace, 
— The defendant now appeared,aud showed 
for cause : 

That several judgments were given by 
default against the defendant, to meet which 
he had offered to deposit monies, until he 
could show, under a writ of inquiry, that the 
sums demanded were not due to the full 

That the whole of the judgments amount- 
ed to little more than £1U0, and that de- 
fendant had abundance of property in his 
house to meet them ; but that the Deputy- 
Sheriff attached a valuable schooner (for 
which the defendant had paid £600), and 
advertised it for sale the next day, when a 
friend of the defendant intended to have 
brought it in, but it was sold before he got 
to the auction for the sum of £400. 

Per Curiapi. Enough has appeared to 
satisfy this Court, that the present is not a 
case in which it will interpose. The insu- 
lated facts of the property taken in execu- 
tion being so much greater in value than the 
judgments recovered, and advertised one 
day to be sold the next, would be sufficient 
to call forth this determination of the Court. 

Sales under process of law are compulsi.. 
tory on the party, when they are regular ; 
but th y must be strictly regular to be legal ; 
and they ahouid be so fair, open, and above 
board, as not to admit of the suspicion of 



January 14<A. 

"Where properly 
was taken by iba 
deputy. sherifl' in 
execution, to an 
amount far exi 
ceediog the amount 
of the judgments, 
and was after* 
wards sold at auc- 
tion, without due 
notice of the sale, 
the Court refuaed 
to compel the 
parly against 
whom the judg- 
ments had been 
pven to deliver up 
the title-deeds to 
the purchaser, vn 
the application of 
the deputy sberifi; 



of Harbour-Grace 

Thomas Pynn. 


fraud or connivance. Without offering any 
opinion upon the case, whether it may not 
have been perfectly fair, I am free to say 
that I do not think it regular; and, therefore, 
I must deem the sale void, and refuse the 
intervention of this Court to give the reliel 
which is demanded. 

r r 

Jenuary 22(1. 

The notice to a 
tenant to quif, must 
be given Itefore the 
•xpiratioD of the 
term, to entitle the 
landlord to doa- 
ble vatue on (he te- 
oanl's holding over 
after the expiration 
of the Term. [But 
see 8 East 358, re- 
ferred to in the fol- 
lowing note on this 

Thomas Meagher & Patrick Morris 
against Timothy Flannery. 

CTION to recover the sum of j^es, un- 
der the following circumstances : — . 

The defendant was tenant of one Barry ^ 
deceased, at £35 per annum, for a terra 

which expired on the 1st October, 1816. ► 

Before the expiration of the term, Barry 
died, and James Macbraire became his per- 
sonal representative, and, as such, entitled 
io the residue of Barry's own term, which 
expired on the ist October, 1817, Defend- 
ant held over after his term had expired, 
and Macbraire^ by notf in writing, dated 
25/A Ottober, 1816, gave him notice to quit. 
Or *• he should proceed as the law directs.'* 
Nothing, however, was done to dispossess 
the defendant ; and, subsequently, at his re- 
quest, the plaintiffs became guarantees to 
Macbraire, for the payment of whatever reni 
might be due from defendant t& Macbraire^ 
for the year commencing the 1st October, 
1816, aiid expiring that day twelvemonths. 
Under this engagement they have since paid, 
or otherwise accounted with, Macbraire, for 
the sum of £65 (being £30 more than the 
rent reserved by the lease from Barry to the 
defendant); and the present actioii is brought 
to. recover fiom the defendant the money so 
paid by them on his behalf. 

"•'"'*** ) 'i^''^mf9 P \i%t f gi > ir i mm>9§imimm 3!e 


ffering any 
t may not 
free to say 

refuse the 

the reliel 



f <£65, un-' 

tie Barry ^ 
•or a term 
', 1816.-. 
ra, Barry 
le his per- 
), entitled 
'in, which 

\ expired, 
ng, dated 
e to quit, 

at his re- 
antees to 
lever reni 
ince paid, 
^aire, for 
than the 
^ry to the 
3 brought 
noney so 


Per Curiam. On tlie 25lh October, 1816, 
it appears, by a note laid in evidence before 
the Court, Mr. Macbraire notified the de- 
fendant *• to quit the premises immediately, 
or he should proceed as the law directs." — 
This notice is dated near a month after the 
expiration of the defendant's term ; and, 
therefore, the statute giving double rent, 
which has been held to require a previous 
notice, does not apply to the case. What, 
then, does the law direct ? Why, an eject- 
ment, which is not brought ; and the action 
is resolved into one for use and occupation, 
for the time held over the lease, the value of 
which must be collected from evidence; 
and as the same premises were let in the 
following year, 1818, for a new term at £40 
per annum, I incline to think that sum a 
fair equivalent for the preceding year. But 
I shall leave the case open to proof of any 
specific agreement, or understanding, as to 
the exact sum to be paid. 

On a subsequent day, the Chief Justice 
declared that he still retained the opinion 
he had formed on Ihe first hearing of this 
case ; and that, as the evidence which had 
»nce been laid before him cdnvinced him 
ibat the rent reserved for the year 1818 form- 
ed the best criterion of the value of the pre- 
mises in 1817, he should hold the defendant 
liable to pay the sum of £40 for his use and 
occupation of them during that year. * 

* As this etise appsars to bavu been brought more than 
'>nce under tbo consideration of Mr. Forbes, and to hate 
engaged a good deal of bis attention, I caaiiot easily per- 
suade myself that be has taken an erroneous view of Jhe 
Uw applicable to it. Yet upon a Tf ry careful comparison 
of thojacts of if, with those of Cobby. Stokes, 8 East, 358, 
- ;;uu^;:3s *ncy uo s&iSi 50 tiiv in bwsr a p'Tjici re$emutaHce 
to na«h other in eM their material poinl8.~" NoN tam 
OVUM ovo siM!LB." Aod. ccmiuJy, the decision o( the 



Meaguer & 





) . 

. ! i 


January 22d. 

A lupplyingo 
merobaat who baa. 
been deprived of 
the proceeds of the 
Toyage,on the faith 
of which the vup- 
plies weie issued, 
by the fraudulent 
conduct of the 
planter, may sup- 
port an action, in 
the name ot that 
planter, against the 
party who misap^ 
plied the property 
which ought to 
have been deliver^ 
ed to the merchant. 

CoNNiCK against Dooling & Co. 

.A CTION to recover two years' rent of a 
fishing-room, on the French Shore, and sixty 
quintals of fish which were caught by plain- 
tiff, and were to have been delivered to 
Shannon, Levingston 4' Co., but were clan- 
destinely received by the defendants, and 
fraudulently delivered to their suppliers, 
Stuarts SfRennie, to i g prejudice oi Shan- 
non, JLevingston <^ Co. who are the real par- 
ties in this action. 

At the conclusion of the evidence on both 
sides, the Court stated the case to be of so 
much importance, as a precedent, that it 
should require reference to the books of 
Shannon, JLevingston Sf Co. to see the state 
of the accounts between that house and the 
plaintiff, and what balance had become due 
to them that year. 

On the following day, plaintiff's agent at- 
tended and laid a statement, as required by 
the Court ; by which it appeared that plain- 
tiff, in that year's dealings alone, had in- 
curred a balance of debt amounting to 
ii558 6s, 4d ; whereas the defendants had 
a credit upon the balance of their account 
with their suppliers, Stuarts & Rennie, of 

J£138. . , . J 

This statement being admitted, judgment 
was delivered as follows : 

Per Curiam. This action is for two prm- 
cipal items ; one for two years' hire of part 
of a fishing-room on the French-shore, 
charged at £12 per annum ; the other for 
sixty quintals of fish, said to have been 
made by the plaintiff, and smuggled, as it is 

Court of Eing*« Uenoli in €t>hh 4' Siokis^^i diractiy rs vsri- 
ancA with Mr. jFbrto's judgment, and aUogether repugnant 
to the principle upon which he professes to have fouaded it. 

'**™!S;'?^ f^JWm?m«mm 


& Co. 

i' rent of a 
!, and sixty 
it by plain-' 
elivered to 
were clan- 
dants, and 
' suppliers, 
;e oi Shan- 
le real pat' 

ice on both 
to be of 80 
snt, that it 
books of 
e the state 
ise and the 
ecome due 

*s agent at- 
equired by 
that plain- 
le, had in- 
)unting to 
id ants had 
={r account 
jRennie, of 


r two prin- 
lire of part 
J other for 
have been 
ed, as it is 

her repugnant 
ive foucded it. 


called* on board a schooner of the defend- 
«nt, Doolini^, instead of being delivered to 
Shannon 6f Co., the plaintiff's supplieis. The 
value of the rooms has been variously stated 
by the witnesses. 1 incline to think that 
the charge is not out of the way, supposing 
the rooms to be in tolerable order; and, 
therefore, J shall allow the first year's rent 
as a compensation for repairing the room, 
and admit the charge for the second, at the 
rate of £l2. 

With respect to the smuggling transactiony 
the two principal witnesses, Edmund Dunphy 
and James Conners, are completely in con- 
tradiction. Dunphy, who was in charge of 
Connick's room, swears that sixty quintals 
of fish were put on board Dooling's schoon- 
er, commanded by Conners* But Conners 
as positively swears, that all the fish brought 
ronnd by him was from iJoo/iMg"'* flake, and 
no part whatever from Connick's. The trans- 
action is discreditable to the plaintiff, who 
comes forward in the character of a dealer ; 
confessing, by his action, an attempt to de- 
fraud his suppliers. Did the matter, there- 
fore, rest between these parties, I should 
refuse the interposition of this Court, upoa 
the principle, that '• in pari delicto, meli- 


aware that the representatives of the suppliers 
are ihereal parties to this action.The case rests 
entirely upon evidence ; and as the evidence 
is contradictory, it becomes the duty of the 
Court to weigh it with a careful hand, and de- 
'>/,rmine to which side the balance of credit 
belongs. To me it appears,that the defendants 
did receive the sixty quintals offish from Con- 
nick, with the knowledge that he was in- 
debted for his supplies, and that it was with 
the view of defrauding his merchants. The 
5ituaiion iii which Dunphy was placed, ae 




Pooling & Co. 


>-».j>»kJv.i*«i** — ww.'AjawTr**-''- 



it M 







master of the plaintiff's voyage, his age, 
and the clear manner in which he gave his 
evidence, convince me that he could not be 
deceived, and that he spoke the truth. His 
testimony is also corroborated by many im- 
portant circumstances, such as Connick 
having first brought round a quantity of 
Doolingy fish, which he delivered to Stuarts 
^Rennie, for which wo freight was changed. 
Why should this very proper charge liave 
been omitted ? By the circumstance, related 
by Mr. Bemdea, of CowmVA;'* demanding mo- 
ney of l><w/i«g-, in his presence, which, al- 
though he denied owing, he consented, 
however, to pay in bread ; and by the im- 
portant fact upon the face of their re5?pective 
accounts of that year, that Connick, who 
fished at the same places, and on the same 
room, as Dooling Sr Co., should fall in debt 
to his suppliers £548, while Doohng ^ Co, 
W6re in credit to the amount of £138. 

Upon the whole case, 1 am satisfied that 
the defendants did receive the fish in ques- 
tion, and that justice requires an example to 
be made of this fraudulent combination be- 
tween planters* to deceive their suppliers. 

Judgment for plaintiffs £Qi Us, and costs. 





, his age« 
e gave his 
uld not be 
uth. His 
many im- 

I Connick 
[lantity of 
to Stuarts 
8 charged, 
arge liave 
;e, related 
which, alo 
•y the im- 
lickt who 

the same 

II in debt 
vg S^ Co, 


sfied that 
in queu> 
icample to 
ation be- 
md costs. 


Baini:, Johnston & Co. against Alexan- 
der Chambers. 

Jr^ER Curiam. The plaintifls are mer- 
chant-suppliers for the fishery, and ad- 
vance necessaries to dealers at the out- 
harbours of this island, for which they re- 
ceive fish and oil in payment. They supplied, 
among others, Fraud 6c Sons of Trinity Bay, 
last summer, to a cpnsiderable amount, but 
receiving from them little more than one- 
half of the value of their advances ; and 
hearing that their fishery had been product- 
ive, they caused an inquiry into the cause, 
and learnt that they had put ofi" part of the 
proceeds of their voyage to the supercargo of 
a certain schooner, which had been sent 
round, by the defendant, to Trinity Bay,'for 
the purpose of obtaining fish and other pro- 
duce in exchange for provisions and goods. 

It appeared in evidence, that the defend- 
ant was not a supplier of Froud Sf Sons '^ that 
he had sent a schooner to Trinity Bay, in 
October last, and directed his supercai^o in 
general terms, to barter goods for fish, who 
conceived he might deal with any person 
that offered ; and under this impression, re- 
ceived thirty-five quintals of fish from Froud 
& SonSf without asking any questions about 
their suppliers, or the state of their accounts, 
or supposing such inquiry necessary. 

Under these circuttistances, the plaintiffs 
brought this action for the recovery of the 
value of the fish received by the defendant, 
for which ihey contended he was liable, 
under the usage and law of the fishery. The 
defendant, on th ^. other hand, maintained 
that he had a Tia!:bt to purchase from anv 
person who was in possession of the com- 
modity _8old ; and as he paid ftdl value for 



January 25tA. 

The town of Sf. 
•Tolin is a market 
overt ; ami, tliere- 
foro, the lieii of 
llie siipplyjiif; mer- 
chant upoti (lie 
produce of the 
voyage is divrst* 
ed by a bonaJUle 
sale of such pro^* 
duce ill this town. 
Secus in ihe oat- 
harbours, which 
are not markeU 



I ( 


" 'I 





Bainb, JoilNx 
sroN & Co. 



y I 


the fish in question, he was entitled to retain 
It. And he further insisted that it was not 
only a usual traffic to barter for tish at the 
out-harbours, but it was a great easement to 
planters to be enabled to sell at their own 
doors, without the risk of water-carriage, or 
the expense of freight. 

Jt is certainly the right of the owner 
of any goods to dispose of thein in any 
way that he pleases ; but the gist of the 
case before the Court is, who were the 
owners of the goods in question ? and what 
is the force and extent of that lien upon the 
actual or supposed existence of which, the 
merchant who advances the means of prose- 
cuting the fishery principally relies for his 
payment ? This is a question of the great- 
est consequence to the trade and fisheries of 
this island, as at present conducted ; for it 
is well known that they are, for the most 
part, carried on by means of necessaries fur- 
nished at the commencement of thO'fishing- 
season, to persons who are seldom possessed 
of any capital of their own, upon the faith of 
receiving the proceeds of the voyage in pay- 
ment for the supplies. It is a system of 
credit founded in good faith ; and it becomes 
the duty of the Court to cement this neces- 
sary confidence between the parties, and to 
guard it with vigilance from infraction by 

It has always been held that the regular 
supplier of necessaries for a fishing-voyage 
has a specific interest in the fish caught, to 
the value of hit supplies. It is a local usage 
growing out of the course of conducting the 
fishery, and was probably adopted from the 
maritime law of lien upon a ship, for neces- 
saries found and labour performed upon a 
foreign voyage (a). In the case of Cunnings 
(a) Sm the caae of Kelly v, Hut(c4 <e Co^ 



to retain 
t wa^ not 
Ish at the 
ement to 
leir own 
rriage, or 

e owner 
in any 
L of the 
vere the 
ind what 
ipon the 
liich, the 
jf prose- 
^s ibr his 
16 great- 
heries of 
d ; for it 
he most 
iries fur- 
3 faith of 
B in pay- 
stem of 
is neces- 
, and to 
ction by 

ught, to 
ail usage 
ting the 
rom the 
' neces- 
upon a 


: I 





ham, Bell & Co. v. Trustees of Crawford & 
Co., this right was deduced from the neces- 
sary connexion of the parties. la a more 
recent case it was held, " that the supplier 
of necessaries, had a lien upon the fish for 
the amount of his supplies ; that the 49th of 
the King was a directory application of the 
same principle to the distribution of insolvent 
estates ; and that a judgment at law was 
subject to the preferable claim of a current 
supplier" (b). The Courts have gone so far 
as even to attach the person of a planter 
endeavouring to evade this vital principle of 
the fishery. 

Now, what are the facts before the Court ? 
The plaintiffs were the regular suppliers ; 
the defendant supplied nothing. The plain- 
tiffs are paid in produce to the amount of 
half their advances, and must lose the re- 
mainder ; while the defendant receives part 
of that very fish which was caught by their 
means. The defendant states that he was 
not aware of the plaintiffs l)eing the suppli- 
jers of Froud & Sons ; but if this excuse be 
sufficient, there is an end of the law ; for the 
party who means to set it up, has it always 
at his command; he has only to ask no 
questions, and hp may be assured the other 
party will not volunteer a discovery. I am 
willing to believe that the defendant has 
acted under a misapprehension of the case ; 
and 1 dare say he conceived he was perfect- 
ly at liberty to purchase fish from any person 
who offered it for sale. In this town, to 
which a great number of independent plant- 
ers and others resort, for the purpose of 
selling their produce and buying provisions, 
it would be going too far to say, that the 

(ft) Le Geyt, lieceiver of Greenwich Hospital, v. Milltr 
Fergus & Co. 


Dainb, John- 
ston & Co. 






STON & Co. 

1 » 

i I 


t i 

" (S 

W A* purchaser „ffi.,,„„„„,;,.^^l^ 

foX"n,re"::4Vri'r -""<» -p"" - 

but that was comra?v%^Th "'•'''".'".'"' " ?«» ; 
po-rt. which, by ana 1„ . "i"""?" <"'"'» 
'•»™e, regar<le,I this 3 '" '«'«•' /'age at 
an open and ^.,1. *.* "W**/ oivrf 

private hi lorv of" ""Possible to trad 'the 
which may coL ,1 "'"7 "'""'load of flsh 

B"t the same rr-asoK Hn '.P'''''''""^'-- 

<'ie out-harbour^ ■ Ti. ' ""^ """ apply to 
of »ale; and from th^ifh^ "»"^'«»' Places 

*6l'. m which another hV, »" °f 'ece'ving 
consequently, of refun'L P'^P^^y, and! 

tn detcrmininff that i?,« ,i <• . 
account to the pla m /R f„ 'lf«°<'a''t must 
«ceivcd of FrStllTiK'f'hl'^s 
*' al 1 am sustaining a vT/' '''^ satisfied 
P ? ; for who wil fe foZfr'"?""' P"""" upon so precariouTa t'Ll^sTfi^r 
'^y> it, besides th** ii«^ ? . "& '^s a fishe- 
"■ents, and the flXaUol '% "^"-^ «'«- 
icts be is laid open to the f/??^ "ar- 
^, by his deaLr*"be,W n ."' '°? '"''•« 
«o any persons who malfff '"'^'"'"'c'l 
produce of the voyage" tit f «» buy the 
"Pon which the «,.£i' ■ ^""7 produce 
for payment and wh,*;^ 'I^r^'P^''^ 'oIie» 
created by his Weans » pi/ '''' " chiefly 
'abour constitutes M a smtl. "*?■ P^'-''""' 
•necessary m«to,„; fw a fi^hllr*'"' '"^"'e 
Judgment for piaiw4^''"'^y- 



o"ltl be liabK 

ailed upon so 
ants* w (TQg . 

'inion of^tliis' 
eg;*' usanfeat 
'larAet overt, 
•of sale; in 
to trace the 
'oad of fish 
J the publi, 
r purchaser. 
'' apply to 
sual places 
the purcha- 
>f receiving 
•erty, and, 
e may bwj 
buy it sub" 

tJant must 
ish he has 
} satisfied 
iai princi- 
ance sup- 
's a fisbe- 
f the ele- 
•>gn mar- 
;d to sell 

buy the 
ly relies 

1 Of the 


Alexander VnzGB.VLS.'UTi against William 


.CTION to recover £(^ 6*., amount ofthe 
passage of a servant, all sjed to have been 
stopped in the bar of defendant to the 
use ofthe plaintifi*. had previously paid 

the amount to Mi s. Baine^ Johnston & 
Co., the owners of the vessel. After several 
evidences had been examined, and the par- 
ties heard, the Chief Justice said : — 

There is no proof of the money being ac- 
tually stopped by the defendant totheplain- 
tift''8 use, so as to make it an original obli- 
gation on his part to pay the money; and, 
therefore, the plaintiffs case is tnerely a 
collateral undertaking, and falls within the 
statute of frauds; and as there is no agree- 
ment in tvriting, in compliance with the 
directions of the statute, there must bejudg' 
ment for the defendant. ' ,. ' 

DuoGAN & Whit? agains$ Jqhn if^ 
Tbimingham & Co. 

ink CTIQN of account ; disputed ch^i^etl 
rtiiide by defendants againW plaintift' as 
follows J—- • V t 

1/4 .--Commission on adVariclrf^ jt3^5 foi- 
purchase of a certain schbonfer,'fl per d^t; 
2 September— jei 7 15*. 

JB. — Ditto on sale of schooner to Pember- 
ton, 2 March— £10. 

C. — A puncheon rum, said not delivered 

ly. — Short received of Mr. Macbraire for 
freight due plaintiffi- £l 14*. 

E. — Short received of Pemberton for sale 
of schooner — £23 13*. 




Fdmuxry Mth. 

In Ibis cue, tbt 
Chief Juitice re^ 
• ognized ibo •!■• 
I Jta of frauds (20 
Car. 2, c. 3), aa 
applicable lo this 

February IS/A. 

A conunissioo 
of 2i per cunt, it 
•II that an agent is 
entitled to on th« 
purchase and sale 
of property for his 
principal, in the 
absence of any ex- 
press agreement 
between tbem oa 
that point. And a 
general agent is 
not responsible for 
the solvency of 
the purchaser. It 
is sufficieot that 

thn niirshaaar n>n_ 

in good credit at 
the time of salt. 













1 1^5 IIIIII.4 










,^S 1653 East Main Street 

JSS -^ Rochester, NY 14609 USA 

J=r -^ Phone: 716/482-0300 

.S^.ss Fax: 716/288-5989 

e 1903. Applied Imaga. Inc . All Rightt R*Mrv«d 









i ' 






DuooAN ie 



J. F. TaiMiNG. 

HAM dc Co. 


Several witnesses were examined on each 
of the points in controversy between the 
parties, and the Chief Justice then delivered 
the following judgment : — 

The commission of 5 per cent, on purchase, 
as well as 5 per cent, on sale, is an unusual 
commission, and must be limited to two 
and-a-half per cent., instead of 6, as is the 
usage of such transactions in the absence of 
particular agreements. It is admitted that 
the defendants held a security upon the 
schooner, which was alsolnsured ; and, there- 
fore, there was no such great risk as was suffi- 
cient to warrant unusual interest. But an 
there was money due from plaintiffs to de- 
fendants, when the latter demanded the 
purchase-money of the schooner, in addition 
to what was before due them, I think they 
are fairly entitled to legal interest from the 
time of purchase up to the sale in March. 

The objections to the two next items of 
the account have not been sustained ; and 
as the defendants bad merely acted as ge- 
neral agents in selling the plaintifTs' schooner, 
wHhont warranting the stability of the pur- 
chaser, and as it afipears that Pemherton 
was in credit at the time of purchase, and, it 
is known, became in difficulties in the fall of 
the year, before the balance of ;£23 was paid, 
no blame or negligence can be imputed to 
the defendants on that account \ and that 
sum aUo must stand. 



led on each 
etween the 

n purchase, 
an unusual 
ed to tuo 
S, as is the 

absence of 
[iiittcd that 
f upon the 
st. But SB 
tifls to (k- 
landed the 

in addition 
[ think they 
?fit from the 
n March. 
3xt items of 
lined ; and 
:ted as ge- 
8* schooner, 

of the pur- 

liase, and, it 
in the fall of 
S3 was paid, 

imputed to 
; and that 



John F. Triminoham &Co. fl^oins<JoHN& 
Robert Brine. 

.CTION for arrears of rent of a certain 

piece of ground :ind house, situated below 
Church-hill, let to the defendants for ten 
years, from October, 1811, and occupied by 
them as a bntcher's shop. — Premises destroy- 
ed by the fire of November, 1817. 

It was proved that SmpsoUf one of the 
plaintiffs, gave directions, during the fire, to 
pull dowTi the shop occupied by defendants ; 
and it appears very probable that, had not 
the shop been pulled down, it would have 
taken fire ; and, in such case, plaintiffs' 
stores must have been burnt down, as the 
shop joined them. 

It was admitted that this case could not 
have been conscientiously brought before a 
Court, unless the defendants had continued in 
the occupancy of the premises after the fire; 
and further, from that circumstance, it was 
ai^ed that he had 'waved his equity, and 
elected to retain the ground. 

Per Curiam, This case addresses itself 
80 Strongly to the equity of the Court, that 
unless more direct and unequivocal prooi 
can be laid before it of a positive election 
of the defendants to retain the ground on 
which the shop stood, after the fire, beyond 
the mere time necessary to remove the wreck 
of their property, I should incline to think 
it against good conscience. The defendants' 
shop was built by them at considerable ex- 
pense ; it adjoined the large and valuable 
stores of the plaintiffs ; it was cut down du- 
ring the fire, partly with the assistance, and 
by the orders, of one of the plaintiffs, and, 
principally t to save the plainiiffB* own Btores, 
which must have been entirely destroyed it 


Tbt mere hold- 
ing of ground for • 
short link* afttr til* 
house erected up- 
on it htd beendci- 
troyed by fire, for 
lb* purpose of re- 
moving the k-'reck 
of the pro^ rty, 
will not deprive lb* 
tenant of his right 
to Burrender the 
lease under the 
ouBlom'of this town 
[See Broom r. 
Prettoti 4r Siabb, 
decided in the Su^ 
preme Court, 13tb 
August, 1826.] 



UAM Sc Co. 


J* & R. BaiRg. 


riii!. ? '' '"•"'*'"^' "* *'"' P««'l'"» Of the 
respective premises ; therefore, let this case 

hlJ" ' ^ ^^^ 9' ''''°' f*''" *''e plaintifls to 
l,nv^ ^^'f convincing proof, if any they 
have, of the fact of dei^^ndants* retaining 
possession after the fire, as tenants under the 
lease; otherwise, judgment, in the nature of 

4pnl 1511, 

April ibtk. 

As tb« King't 
Bailiff, the High 
Sheriff mtyjuiii- 
fj pulIiBf down t 
building arcelad oo 
land belonging to 
the Croiru, ander 
• lioenie from ibe 
Governor, revoca'> 
hh at pkaaurt, if 
tho party who 
•reeled the build- 
ing refute to re« 
novo it. after ba> 
Ting been regular- 
ly deaired to do 


tiffs to adduce farther proof, a judgment, as 
above stated, was entered against tiem. 

HoYLEs & Other^fl^atWl John Bland, 
Esq.. Higli Sheriff. ^ 

fThli cue I. ilf.atm'baiim from Mr. F^be,^, notea, or 
minutes, of the trial.] 

Action for forcible entry, and pullinff 

orhannfT'^'' building used as a coCig! 
or house, for a public fire-engine. 

J he declaration contained two counts : 
first, under stat. 8th Hen. VJ. c. ; and the 

sir/rr^c.'^^' ^- 

Plea, Defendant admitted the fact of 
!?♦ f"?f *"«* P»»»ng down the building, and 
set forth, that theplace on which the trespass, 
&c. was committed was a/mWiVr shiprJoom, 
authorized, by statute, to be granted, or 
disposed of. by the Governor.^hat the 
defendant, as sheriff and bailiff of the crown, 
entered on the same for the purpose of re 
moving a house, or shed, which was placed 
there, withnnf ri«.k» — i: i i v , 

such effect; and that he did so remote the 



lere can be 

ilinn of the 

et tiiis case 

)laintifl's to 

any they 


I under the 

e nature of 

given for 

the i^kin- 
Igment, as 

r Bland, 
n'< notes, or 

1 pulling 

counts : 
; and the 
tss, quare 

i fart of 
ling, and 
nted, or 
D crown. 
Be of re 
) placed 
f had to 
love the 


BAme in a peaceable manner; and that is the 
trespass complained of. It appeared, durin;; 
the trial, thai the locus in quo was, in fact, 
part of a ship's room, and that permission 
had been given, by the then governor, in 
1805, for an engine-house to be placed on 
it, removaule at pleas,:re. In the fire of I 'M (i, 
the house was removed, and the building, 
whic'i was lately removed by the defendant 
by order of the present Governor, had been 
since erected as an engine-house. 


Place, a Ships -room. — Surveyed 1804.— 
License of governor in 1805 for a leropumry 
building, on wheels. — Act of Parliament 
1811. — Allotment of place as custom-house, 
in 1812.— 7>Fire in 1816, and old house remo- 
ved ; replaced shortly after, — Fire in J^ovem- 
ber, 1817, and other place assigned as cus- 
tom-house; and place in question disposed of, 
under .^cl^ 1811. — Notice to plaintiff in 
February last, and consequent order to take 
steps to remove thd house erected on ^iliips*- 






State nature of action. — Define trespass 
at common law. — Forcible entry a statutable 
trespass^ and also renders party liable to in- 
dictmeni. But this difference, that in action 
at suit of party, defendant may show a right 
qf entry and possession; but in indictment, 
which goes to the public injury, without re- 
ference to the rights of parties, violence can- 
not be justified. — Hawkins^ vol. 2, p. 29 ; Hd 
Term Rep. 295—6. 

As this is a private action, therefore, and 
capable Mi justification ; and«as a justinca- 
tion goes to the question of title, necessary 








to take a review of ihe case with reference to 
title and right of entry. 

Place upon which engine-house stood was 
shtps-room, [See statute 51, Geo. III., and 
chart therem referred to.] As such ships'- 
room, incapable of private appropriation, 
even by license from the Governor.~^to<tt/e 
fTm. J J I. and I6th Geo. 111. 

Statute 51st Geo. III. proves its being so, 
as that statute was made to allow its being 
disposed of. ** 

^ So far, complete proof that ihe property 
inthejoi/was in the Crown, and, conse- 
quently, of any building which was fixed 
upon It. 

Necessary for defendants to show some 
itcense, or some title to possession, at the 
time of the alleged injury ; for if they had no 
title of any kind, they have sustained no 

Governor Gower's permission, tn 1805, 
void, ab initio ; but even the license that 
was given was destroyed at the removal of 
the house, built agreeably to such permis- 
sion, on the fire of February, 1816. 

The plaintiffs were, indeed, in the posses- 
stonofthe place; but their was no tenantcy 
under the crown ; they were permissive oc- 
cupants, but not tenants at will, entitled to 
notice to quit. 

Nature of tenantcy at will, entitled tono- 
tice.--A yeariy tenantcy, determinable at the 
Will of either party ; but a strict tenantcy ai 
will, not entitled. However possession may 
be sufficient as against a third party, or 
wrong-doer, it is not suflicient against the 
party entitled. 

Here then was neither title in law, nor ia 
fact, as against the Crown. 

f^hertff, batliff-o/Oown, and entitled, ex offi- 



'eference to 

3 stood was 
>. III., and 
luch ships*- 

8 being so, 
w its being 

^e property 

id, conse- 

was fixed 

how some 
ion, at the 
ley had no 
itained no 

in 1805, 
ense that 
emoval of 
:h permis- 
he posses- 

issive oc- 
ntUled to 

led to no* 
ible at the 
nantcy ai 
moH may 
)arty, or 
linst the 

vr, nor in 

i uRenjf. 


ciOf to take possession of lands for the 
crown. — Sec Ist Black. Com. 343. A ser- 
vant may justify acting under order of the 
party entitled to the right of entry. — Argent 
V. Durrani, T. R. 408. 

Where the Crown is entitled by matter of 
record, it may enter without office, or pre- 
paratory proceeding. 

Not necessary to gc into the great powers 
of the Crown, as they are difficult to recon- 
cile in theory with the practice of the pre- 
sent day. If the Crown had a present right 
o/en/ry, the Sheriff, as the public bailiff, 
was justifiable in entering, in the same way 
as a private individual would have been 
justified, acting under the direction of ano- 
ther individual lawfully entitled to entry ; 
and the house, being a fixture, belonged to 
the Crown, and was liable to the same consi- 
deration as the ground upon which it stood. 

Observe, generally, upon the power and 
duty of a Sheriff, and responsibility as a high 
officer of the Crown ; to which the law im- 
putes not only no wrong, but an incapacity 
to do wrong. If the Sheriff abuses his trust, 
and dishonours the name o'f his master, he 
is doubly liable as an individual, and as a 
public officer abusing his trust. — See 2dJnsi, 
205 — 6. Sheriff acts at his peril ; and if the 
crown have not a complete right and title of 
entry, he is a trespasser, however high the 
orders under which he may act, and liable 
to an action at suit of the party injured. 
And ev^niftbeCrowu have the right, yet 
if he enter with force, and without the so- 
lemnity of lawful proceeding, he is liable to 
a crimmai prosecution. 

Upon tne whole, the action is not main- 
tainable ; and the only question for the ju- 
ry is, whether the esffine-house stood unn^ 
the ships'-room at thw time it was removed 



Hot LBS & Olbari 



. f • 




by the Sheriffs—which is no questim at aU, 
And the jury cannot but find a verdict for 
HoTiKs&Oih.M the defendant, under the evidence before 
the Court. 

The Jury retired, and, in a minute or two, 
returned a verdict for defendant—" JVof 



April I OIL 

HoYLEs and Others agaimt John Bland. 
Esq., fl. S. 

J flE plaintiffs in this action now m^ved 
the Court to grant a new trial, on the ground, 
•hat the building in question, on (a) wliich 
the trespass (as laid in the plainlifls' d* da- 
ration) was committed, was the properlv of 
the plaintiffs, in that degree which entiiled 
them to remove the same from the locus m 
quo, or the soil whereon it stood. 

That the plea of liberum tettementum, set 
up by defendant, extends only as to right of 

That the declaration of plaintiffs compri- 
ses a count fie bonis asporlatis; and that 
proof of such carrying away was laid before 
the Court and Jury at the trial. 

That such presumed proof (being found 
satisfactory to the Jury) would establish an 
excess of damage beyond what could be 
justified under the defendant's plea. 

That thi« part of the Ciase wa6 not, by the 
Court, sent to the Jury for their <i6n8id^r&- 
tion, as the plaintiffs deenk it shoald have 
been, according to the c'aise of Fox t.Oak^ 
ley and others (ft); butthatthe ebarge of the 
Judgt 'went to the effect of totdllif ea^lu- 

(a) IFoac{^(i/r« Ltndlord & Tenant, 623 ' .'j < 
(*) Penion y. Hobtrts, 2 Eui, 08. ' 





^stian at a//, 
. verdict for 
ence before 

mte or two, 
ant—" \Nut 

ds Bland, 

ow tn "^ve^ 
the ground, 
1 (a) whicli 
lifls' df cla- 
[iroperlT of 
c'h entitled 
he locus in 

lentum, set 
to right of 

ffa compri- 

and that 

laid before 

eing fonnd 
•itablish an 
could be 

ot, by the 
bnld hare 
irgeof tbe 
illy, eseclu- 

ding tbe Jury, under the whole of the case, 1819. 

from returning any other verdict than ♦• JSot 

In the matter of Jane Morris's property. j^^^i ^^d. 

N injunction havingbeen obtained to stay 
the puyuient of the rents upon certain pro- 
perty claimed under a decree of this Court, 
until the case is finally heard ; a petition 
to dissolve the same was this day made, on 
the part of the widow and children of the 
late Richard Undry. 

John Jermiiif Ann Anqel^ George Rogers, 
and Jane Chafe^ were examined, to prove 
that the spot of ground now in dispute, upon 
M'hich certain houses are now built by per- 
sons holding the same under leases, granted 
them by the late Richard Undry, had been 
given to him by his late mother, Jane JUor^ 
m, some years previous to her death, and 
that he had built a small house on part of 
the ground on which he lived at the time of 
his mother's death. 

Broom, jun. in support of the injunc- 
tion, calls Ann Mathews, who wa^ sworn, 
and partly examined ; when Mr. Chanceyhere 
stated, for the injormation of the Gqurt, that 
all the property in question is included in the 
ships'-room called ** Darkess's," authorised 
by the act b\st George III., to be^is;f>osfd o? 
l^ the Governor. • ! i i. t 

Per Curiam. — It is useless to t>tt)C6^d fi^- 
ther with respect to property st^dii)^ iirion 
ship's-rooms, as denned by the^attitef dt'st 
George III. Let the matter stand ov^r lOr 
the present. I shall cause the Govi^rhbi^ to 
be informed of the case, in order that mea- 
sures may be taken to protect the r|ghts of 
the Crown. -"^ •'•^'^^^ .•;,; .-1. j/iut -if,- ' 


WhfM Ibc pro- 
perly ill tiiiputo 
belwoeo tli« par« 
ties appctrcd to 
ba part of • thip'wn 
room, th« Court 
•topped nil futtbar 





As there is said to be oilier property than 

i„ .h .. , } «". *^">'*-»ww». Mr. Chancey will make 

'M^%r.a/' ^ sketch of li.e whole upon pa^,er. distin- 

«!«•» properly. &"'«"'»&. between Buch property as is, and 

such as iH not, upon public ground, and lay 

It before the Court on Monday morning 


.^/ec*. «-""•" * c^i-nrii""" «-"• 

Lsq., Higli Sheriff. 


N the 19th of this month, Simms, for the 

N«ir trial ri 

f«Md: and ih« "T-"" .^i.'" '*"" "' ""•"» "luimi, atmms, lormc 

grouodt of such P'aintinH, moved for u new trial, on the 

r«rusal •uted in ground that the difcndant had used unneces- 

jjM^^by lb. Chief «apf.wo/iWic/i in removing the engine-house. 

which was proper consideration for the juri/ ; 

but that by the direction of the judge, no 

such point of evidence was left for the jury : 

and cited 2 East, Rep. 08. 

But the motion was rejected by the Court, 
for the following reasons : — 

The first count, for forcible entry, will 
not admit of any doubt. The issue is always 
upon the title, and not the force ; Vin. ab. 
title, "forcible entry "—article, "issue." 
As to the second count, the Court is of opi- 
nion that, from the nature of the building, 
and the license under which it was originally 
put up, while the plaintiffs were in possession 
of It, they might have removed the same 
without being liable for the value, or subject 
to any action on that account ; and, even 
after they were put out of possession, that 
the materials ofwhich the building was com- 
posed properly belonged to them; and, 
consequently, had the defendant exercised 
any wanton yiolence in removing them, he 
mieht have nenn linhlo f/^x 4k« ;»; u. 

might have done. 3ut the cage was not 




pprly than 
will mako 
?r, diHtin- 
as 18, and 
1, and lay 

r Bland, 

ns, for the 
I, on the 
t vnneces- 
• ihejury ; 
judge, no 
the jury ; 

Jie Court, 

itry, will 
is always 
Vin. ah. 
is of opi- 
the same 
or subject 
md, even 
ion, that 
was com- 
01 ; and, 
them, he 

was not 

rested upon this ground at the trial ; no 
proof whatever was adduced as to any 
asportavit by the defendant, orany unneces- 
sary injury to the materials in taking them 

There was a carpenter employed for the 
purpose of removing the building. lie 
says he was obliged to cut it to pieces, as it 
could not be removed entire ; and after it 
was taken down, that the materials were 
carried away, not by, or with the consent 
of, the defendant, but by some of the people 
of the town. Now, the plaintiffs had been 
notified to remove the building ; they not 
only neglected to do so, but virtually refused, 
and contended for a right to continue until 
ejected by process of law. i 

It was this supposed right which consti- 
tuted the main ground of the plaintiff 's case 
at the bar; although the Court is aware 
that that ground was ratherostensibiy taken 
for the purpose of eliciting the sense of the 
Court upon the power which has been exer- 
cised, and even claimed as a right, of the 
Sheriffs pulling down bouses by order of 
the government of the isln ^, than under 
any serious belief of its be a^j; sufficient to 
sustain their case. Upon this the Court 
sufficiently declared its opinion to the Jury. 
As the minor point was not urged at the 
trial, and the only evidence bearing upon 
it went to negative unnecessary force in 
taking down the building, or any (tsportavit 
by the defendant; and especially as the 
materials could have been but of little value 
from the time of their being originally put ; 
I think I shall do most justice, by refusiitg 
a new trial. 





I i 



Jntl0 9tk, 

Ap|>licaiion io 
the Court tn eii- 
forcti pavinoni, 
through ihe inoan!i 
of •Itacbtnsni, uf a 
dabi duo by an 
■ibaant parly wh«» 
nad become iniol- 
veat, and alnoond- 
ed from Halilaz. 
[8ft p6tt.j 

• ■ 


Wm. & Henry Thomas asrniiist theOwucrs 
of (he Sloop Acadia, 

ROCEEDING in rem iiiuler the statute 
4mhGco. 3, c. 07. 

Case.— 'J'he 8loop Acadia, John Peters, 
master, sailed from Halifax. N. .S., for St. 
John's, in the island of Newfoundland, in 
the month of December, 1810; and arrived 
on the 19th of the same month, a good deal 
damaged in her sails and rigging, and struck 
on the north head, at the entrance of the 
harbour. The cargo was discharged; but 
the sfvere season of the year not allowing 
the necessary repairs to be made to thehull» 
imtd the spnng of the following year, 1819, 
and the vessel not being sea-worthy until 
such repairs were made, the supercargo 
wrote to the owner at Halifax, and in the 
mean time, to prevent unnecessary expense, 
sent the crew to Halifax, on the 28th De- 
cember. Ir February last, the supercargo 
received a letter from William Kidston,oi 
Halifax, who bad a bottomree-bond upon 
the sloop Acadia, that the owner, Joseph 
Jfarquhar, bemg insolvent in his circumstan- 
ces, had departed from Halifax, and recom. 
mended the supercargo to obtain a freiirht 
^d return to Halifax ; and mentioned that 
William Cullen, of St. John's, would supply 
a certain proportion of salt, sufficient to 
ballast the vessel. The plaintiffs were the 
consignees of the cargo and vessel, and have 
paid the necessary disbursements, amdunt- 
ing (o £90 9*. Qd, and after deducting fr%ht 
received at St. Johns, are still in credit to 
the amount of £47 17*. which sum thev 
proposed to William Ctdlen to pay them, 
but which being refused by him. and the^ 
oaving no means of repayment, now demand'. 


the statute 

hn Petergf 
S., for St. 
indiand, in 
nd arrived 
good deal 
and struck 
iCe of the 
irged ; but 
I; allowing 

ear, 1819, 
orthy until 
nd in the 
y expense, 

1 28th De- 
iidston, of 
»ond upon 
er, Joseph 
ad reconii^ 

a frei^;ht 
ionec* that 
lid supply 
Sicient to 
I were the 
and have 
, amdnnt- 
credit to 
Jum they 
ay them, 
and they 


The Court took time to consider tli^ case ; 
and on the following day, the Chi f/ Justice 
donired that particular evidence nliould be 
luid before iiim as to the actual insolvency 
of Fftrquhar, and bis having absconded from 
Halifax ; and, also, of the powers delegated 
by bim to the supercargo. 





Th» Ownvri of lA« 


JauebClivt against H. J. Holdsworth. 
In Error. 

" "N this day, a certain judgment, given 
by the Surrogate Court at Ferryland, was 
brought under review of this Court. 

The judgment was under £40. 

I^illy, for the party in whose favour the 
judgment had been given, objected, in the 
first place, to the jurisdiction of the Court; 
contending that the power given it by iUo. 
49th Geo. 111., c. 67, of reviewing the judg- 
ments of the Surrogate Courts, was express- 
ly limited to judgments for sums exceedivg 
£40, and could not, consequently, apply to 
this case where the amount of the judgment 
was under £40. But should the opinion of 
the Court be even against him on this point, 
he next insisted that the judgment ought to 
be affirmed upon the merits of the case, 
which he shortly detailed. 

Simms, for plaintiff in error, stated, that 
the main objection to theproceedingR below, 
was the want of service of process upon the 
party to the cause. 

That the plaintiff in error, who was the 
administrator of Shannon^s estate, was never 
served with process^ but a writ of attachment 
issued against the estate tn rem, without no- 
ticioJ" him as the defendant ant! wns sf fvpH 
upon the salt; and that the cause was heard 

June 10. 

The Supr«m« 
Cniirt hai an ap. 
aven in oaira 
whpra tlia juiHf* 
inent of ibe Court 
below iff vnder 
£40. (Hut ae* 
Jlitnten ». Home' 
man, lieciUail in 
Ihi* Supromi) 
Coiirl. '2i)ili May, 
1023. > Tlia Mr- 
▼ioe of an alt i.h- 
mani upon proppr^ 
ty ia a tujficient 
nnlica to llip owner 
of thai property of 
Ihft penileocy of* 
auit ralaliTe to if. 





I , / 


«f If J* P*^ ^*^*"S even bad any reeular 
notice of the trial. The plaintiff in erroJ^ 

inat the salt had been attached, and meant 

coufdl^ke f"'^' *'" ^"•'' •^"t'forhe 
could take the necessary measures to do so. 

It was decided; and the salt sold at a season 
ced a^nd'V''^'" ',7? necessarily sacSfi^ 
ie:s\hTn'its;^'^' ""' least ten pounds 
^^In delivering judgment, the Chief Justice 

iJ^ !!t™l*? me impossible that the objec- 
tion which has been raised to the iurisdi^ 
!'«»^<^jhe Court m this case can be we» 
founded. This Court was expressly consU. 
tuted by act of Parliament, ^^TheSu^emP 
Court of Newfoundland;" and, as S 

iLlthS '" "^.' ^""^r"^' Cou^Uof Eng: 
iand,jt had an universal control in all caii 
ses anc^^over all Courts, within the hounX 

"n lesrifwer^i^'^T^ "^ ''' JurisdicSon, 
unless It were ousted by express words. The 

act of the 49th of the King, was. iA manv 
particu ars. merely affirma^ve of its geS 
authonty. Thus it allowed appeal! Tn all 
Courts 'wi: ^lJ"^g"^«"t of thTsuJr^ato 

^om Jhp i "P'^T ^^"•'''' «"d inall cases 
*I00, to the King in Council. But it did 
not require this affirmative clause, to give 
either an appellate jurisdiction. By the 

fountain of appeal from the Supreme Courts 

law those superior Courts have appel- 
late jurisdiction from the inferior Courts 
It IS part of the constitutional law nfT* 
lana that there must reside somewhere a 


ng present to 
J any regular 
ntiffin error, 
ivate channel, 
i, and meant 
ut before he 
res to do so^ 
il at a season 
arily sacrifi- 
t ten pounds 

^hief Justice 

t the objec- 
the jurisdic. 
an be well 
ssly consti- 
lie Supreme 
f as such; 
rls of Jing- 
n all cau- 
le bounda- 
rds. The 
s, in many 
its general 
eals in all 
a all cases 
ut it did 
'e, to give 

By the 
cil is the 
ae Courts 
' common 
B appel- 


Jwhere a 




I! 'lll.-.ll 
'• ifllll. M 

supreme juridical authority to watch ovef. 
the proceedmgs of all inferior tribunals, and 
to keep the scales of justice even and uni- --" 

orra. 1 he same principle forms apart of „ ''' 
the law of every civilized state in the world ^*^^»^^^o"«- 
Were it otherwise, there woujd frequently 

be conflicting decisions, which must intro- 
duce a positive difference in the rules of 

justice--" ALIA LEX RoM^ ALIA AtHENIS." 

bo that a suitor would be sure to cain 
a cause m one Court which he would 
be as sure to lose in another- and that 
without the possibility of redress, the iud-- 
nient happened to be under a certain sum. 
iiut, to bring this hypothesis to a practical 
test, suppose an action to recover the pos- 
LTl""" ""/.? '^^'''.'^'^•^ plantation in thiL is- 
ntih. .k ^'^^^^ J"'S»n«^»ti«given on one side 
01 the other, which judgment is not satisfac- 
tory ; will ,t be said there is rid power to 
appeal to, because the judgment is not "for 
a sum exceeding forty pounds?" Yet if 
he fifth section of the act be the onlu basis 
to rest an appeal on, the consequence would 
be, that an appeal to the Supreme Court or 
irorn thence to the Kiug in Council, could 

ffo onn''"^'';'; f"^ ^i'?"1 a property worth 
^10,000 msght be adjudged in a summary 
way, without a chance of revision or appeal 
Having disposed of this preliminary ob- 
jection, his Honour added, that he felt no 
diflSculty whatever in affirming the judg- 
ment below upon the facts of the case, as 
the attachment of the property was suffi cient 
notice, and it becan^e the duty of the parties 
to have appeafea in the Surrogate Court 
w t^nn a reasonable time, and defended th^ 






June 12/A 

'Th« 8ii|terearK0 
of a vps«el beloiiK' 
ing lo • person 
who had iMconie 
insolfcnt, an<l ah- 
Bcooded from Ha- 
lifax, is conipttent 
to defend the ewa> 
•r in an action 
brought to recover 
monies eipended 
«u such vessels. 


Wm. & II. Thomas against the Owners o! 
the Sloop Acadia, 

fL#N this day, some witnesses were pro- 
duced and examined on the several points 
upon which the Chief Justice had express- 
ed a wish, in the 9th instant, to obtain fur- 
ther information. His honour then obiserved, 
that he considered the owner as suflSciently 
represented by the supercargo ; and that as 
the debt was distinctly admitted by him to be 
due, the plaintiffs were clearly entitled to a 
judgment against a party who appeared to 
have absconded from Halifax, as an insolvent 
debtor. The nature of the debt, which gave 
the plaintiffs a lien upon the vessel, fur- 
nished, the Chief Justice added, a strong 
argmnent in favour of the plaintifls' claim to 
the relief they sought. 

July Tlth. 

An award set 
aeidp, because tha 
•rbitialors admit* 
ted, iifion verbal 
proof, an agree* 
ment which ihs 
alatufe of frauds 
requires tc be io 

; .; 

GossE, Pack & Fryer against Charles 

HIS case had been submitted to arbitra- 
tors, under a rule of court, who had given 
in an award, which the defendant now 
sought to set aside, on the ground that an 
agreement, whicli the statute of frauds re- 
quired t ) be in writing, had been admitted 
upon mere verbal proof by the arbitrators, 
"who had also formed their judgment eitfire/^ 
tipon such agreement. Upon this statement 
bf facts, which was admitted on both sides, 
the Chief Justice deciated that the award 
was altogether void. 


e Owners o! 

38 were pro- 
3veral points 
lad express- 
i obtain fur- 
m observed, 
and tbat as 
by him to be 
Dntiiied to a 
appeared to 
an insolvent 
which gave 
vessel, fur- 
;d, a strong 
iiis' claim to 

t Charles 

d to arbitra- 
had given 
ndant now 
und that an 
>f frauds re- 
}n admitted 
lent entirely 
Is statement 
both sides, 
t the award 


CowELL & anoiher asraiiist Macbraire. 



HE plaintiffs were tenants, in common, 
of a certain plantation in this town, which 
tlicy leased in September, 1809, to the de- 
fendant, for the term of seven, fourteen, or 
t\venty-one years, at the yearly rent of£ 150. 
The leases were drawn in the usual form ; 
the lessor cpvenanting for quiet enjoyment, 
and the lessee to pay lent, and also to keep 
the premises in repair (destruction by fire, 
&c. excepted.) It also appeared that one 
of the lessors had insured a small amount 
on her interest. In November, 1817, the 
houses were burnt down ; and, in June fol- 
lowing, the defendant, who resides in Scot- 
land, caused notice to be given that he con- 
sidered the lease to be at an end. The 
plaintiff, Cowell, brought her action for the 
recovery of a year's rent after the fire, and 
obtained judgment. 

The Court afterwards, entertaining doubts 
of the propriety of that judgment, granted a 
new trial ; and the two lessors having join- 
ed in one action, the case was this day final- 
ly determined. 

Per Curiam. The Court was taken by 
surprise at the first hearing of this case, and 
relied altogether upon the authority of Pen- 
der v. Ainsleij & Rutter, 1 Term Rep. 312, 
as decided by Lord Mansfield. Upon com- 
paring that case, however, with the reason- 
ing of the Lord Chancellor in JBrowne v. 
Quilter, Ambl. 619, it appears that the two 
Courts did not entertain the same view of 
the liability of the tenant where the property 
was destroyed by fire ; the one holding that 
the lessee was bound by his covenant to pay 
rent, although he received no benefit from 
the lease ; the other, that ■ lie landlord be^ 



Auguit 0th. 

tTpon a new 
trial. lb« Chief 
Jtutice held that 
lh« destruction of 
the premises by 
fire eatitled tha 
lessee to surrender 
the lease, although 
he bad, in tho 
former trial, girea 
the lessor Judg- 
ment for a year'f 
rent duo and pay-^ 
able after the 
house had been 









r. // 



ing boimd by his covenant to protect the 
tenant m the enjoyment of the property, an 
eviction hy fire was as much an interruption 
of Uiat enjoyment as if it had been occasion- 
od by any other event ; and that in sucli a 
case equity ought to relieve. 

it IS a little singular that a point which 
mast have been frequently raised, should 
remam unsettled to the present time : for 
tb€ cases since reported will be found to be 
as numerous on one side of the question as 
the other ;— the Law Courts holding the 
tenant io the rigour of his covenant f and 
equity releasing him, under considerations 
too slight to admit ofany reconciliation of 

♦1,^??'"*.? jny«eJf bound by the decisions of 
the iioglish Courts, m herever they are clear 

"r? .^^* ' ^^"°* ^^y "^"t 1 am rather 
glad to be released from the trammels of 
authority in this, and enabled to receive 
evidence of the mojs^e of the place; because I 
jntertoined an opinion, upon the first trial, 

the ouT ^^ **°^ ^*^* ^°*^ ^^^ practice 

X ^^i^J^^vedhjfaUtke evidence which has 
been laid before the Court, that after the de- 
ttructtne fires in 1816 and 1817, i/ie tenants, 
toAose Mouses had been destroyed, exercised the 
mscretton of surrendering their leases. The 
same practice was observed after the fire 
wluch %s stated to have happened about forty 
y^s a^o ; tmd this, in fact, has been invarf^ 
ably observed, without a question, until it 

r^i?"il"%H.*" ^»^ <^^e- It « also sta- 
ted by Mr. JLt%, who has practised many 
years aa a wota- public in this town, and 
1*1 P'^P^'*? * «"^eat number of leases, that, 
wuiong!i 1^ has been sometimes suggested. 

™,vT^« MivMgui uiiCGssaryf lo itilroduce 

«ny express exception against the payment 




3 protect tlio 
property, an 
en occasion- 
at in tmch a 

point which 
ised, should 
t time ; for 
found to be 
'■ question as 
bolding the 
snant ; and 
Qciliation of 

decisions of 
ey are clear 
1 am rather 
trammels of 
to receive 
,* because 1 
e first trial, 
he practice 

which has 
ter the tie- 
the teHants, 
^ercised the 
ases. The 
r the Jire 
about forty 
feen invari- 
n, until it 
is also sta- 
lised many 
town, and 
ases, that, 
i payment 






of reni after the destruction of the property 
by fire, because it was universalty received 
and acted upon that such an event kft tlie 
tenant at liberty to surrender. 

Had the English law upon tke porat been 
less doubtful than it is, this Court ought not 
to hesitate upon the case as it now stands 
in evidence; for communis error facit 
JUS. I shall, therefore, let this judgment 
follow the usage of the place, sanctioned, as 
it is, by the decisions in equity. 

Judgment for the defendant. 

The King against Patrick Kouoa and Avgua22tU 


'N this day, Cooie, on behalf of the 
Crown, and Simms, on the part of the de- 
fendants, bemg present, the C'eurt pronoun^- 
ced the following judgment : — 

It appears by the facts which have been 
laid m evidence, or admitted in argnment, 
before the Court, that the piece of ground 
forming the subjeet-matter of the present 
proceedings, was, upwards ef sixty years 
aga, in the possession of one Jlaines Howell, 
and has ever since continued in the occu'- 
paocy of himseli^ or of other persons claim^ 
ing under him. It also appears that the 
ground lies at the bock of the Ordnance 
Yard, and falls within the provisions of a 
certain order made by the local government 
in the year 1760. It would seem that, in 
consequence of certain: alleged abuses, the 
permission which had been formerly given 
to the soldiers of the garrison to build huts 
upon the vacMilt inpntmi) »flMpr>nf fin JCViWF 

H^iUiam, was at that time revoked by the 
Governor ; and that six houses, which had 

Ao advene pos- 
stMion of land in 
Ihii country for 
sixty years.ia • bar 
to the rightioftha 
(Jroum. And the 
aame kind of poi> 
aeaaionfor Meventy 
yearu, will deprira 
the Cro«rn of ila 
right of entry upon 
^080 lauda. 


( • 

The Kino 



been left undemolished by the French, after 
the evacuation of the fort (amon- which 

Tn'^i^tfT *•""" ''^"^/"° "P«" the ground 
f!rfi P* '^^* '^?'^.' ^' ">^ ^'•d*^'' relates, suf- 
lered to remain m the possession of the re- 
spective occupants, upon their undertaking 
not to sell iquor to the soldiers, and that 
tlie house should be removed at their de- 
cease Hov far the parties in possession 
agreed to hold upon such terms, is nowhere 
mentioned ; but there is a short note, pre- 
served among the records at the Government- 
office, which refers to the permission given 
toBoweil, and states that a similar indul- 
gence was afterwards continued to his widow 
Pursuing the history of the case agreeably 
to the order of its dates, it appears that 
some years after the above transactions, a 
part of the ground which had been occupied 

vL rt?* ""^^ *^^^^ ^»'« ^^^ ordnaSce- 
yard, by the mere act of the officer then in 

command of the department, and theresidue 

was lett in the peaceable possession of the 

partRi, and has so continued, without any 

dispute or question as to the title, until the 

Eltr^Ar^-S^^^'^Ss were instituted on the 
part of the Crown. 

♦T. Jl""^'ll^! P'fP^^' ''^^^> ^o notice, that in 
the year 1804, the Governor, haviig it n 
contemplation to dispose of certain ships^- 
room, situated in St. John's, caused a survey 
and plan of thrown to be made, in whic J 
plan the ground now claimed is laid down 
and numbered aa private property 

Upon these facts, a presumptive title is 
set up, on behalf of the Crown, to the ground 
m question ; and the defendants are called 
upon to show the title upon which thev 
airj • ^'^ 't .'''^'' ^^"^^^ the defend^ 

ants reiv unnn thf» I^ify^K -i?xi- --• 

and require that a complete title for the 


I ! 


?'rench, after 
nong wliicli 
I the ground 
relates, sut- 
>n of the re- 
!r8, and that 
at their de- 
i possession 
, IS nowhere 
rt note, pre- 
ission given 
milar indul- 
) his widow, 
le agreeably 
ppears that 
nsactions, a 
3n occupied 
i ordnance- 
:er then in 
the residue 
ssion of the 
ithout any 
, until the 
ited on the 

ice, that in 
lying it in 
ain ships'- 
sd a survey 
\ in which 
laid down 


ve title is 
he ground 
are called 
hich they 
le defend- 
e for the 



Crown should be made out in conformity 
with the statute of James. The nature of 
the defence imposes upon the Court the ne- 
cessity of determining, in limine, a very im- 
portdut question of law, viz., how far t/te 
subject can claim any property/ whatever in the 
soil of this island ; and whether the statutes 
for limiting the rights of the Crown in real 
actions can be considered as applicable here f 

We are informed by Mr. Reeves, in his 
History of Newfoundland, that thequestioii 
of property had often been agitated, but 
never finally determined. Mr. Fane, the 
law-adviser to the board of trade, had, in- 
deed, gone so far as to admitsomethinglike 
a life-interest in the party in possession of 
the land ; and from a series of direct ques- 
tions which were afterwards put to Sir 
Philip Yorke, the Attorney General, it 
was hoped that such information might 
be extracted from that great lawyer as 
would lay this interesting question at rest. 
The Attorney-General, however, never an- 
swered the points which had been referred 
to him ; and they remained, says JVlr. 
Reeves, to be discussed in after-times. 

Jt is not easy to assign an adequate cause 
for the disinclination shown at that day ei- 
ther to admit or to deny the right of real 
property in this island. The statute of 
William had then passed, and whatever 
might have been the former policy of prohi- 
biting a sedentary fishery, it was virtually 
abandoned by that law. Of all evils in so- 
ciety, uncertainty in the law is amongst the 
greatest, and there cannot be any uncertain- 
ty more distressing than that of the right by 
tvhich a man holds his habitation. 

This island is one of the few possessions 
which were originally acquired to the Crown 
of England by the right of occupancy ; and 


The King 





Th« KiN<» 



it is liable to all those considerations which 
apply to that species of colonization. The 
right to the soil rests in the King, as the Sove- 
reign of the state, by whose means the posses- 
won is supposed to have been acquired, and 
IS, m fact, maintained. In all the other plan., 
tations this right is preserved to the Crown, 
and in virtue thereof, royal grants and other 
alienations are made; but in this island it 
has been conveyed away to the exclusive 
uses of the fishery. It is this circumstance 
which has created the peculiarity in the 
tenure of the soil in Newfoundland, and 
cuused all the difficulty in the discussions 
about property. The statute of William 
throws open all the shores, rivers, and oth^r 
convenient places for the fishery, to all His 
Majesty's subjects in common, but with an 
express saving of the private rights of indi- 
viduals. The act recites, that since the 
year 1685 several inhabitants had possessed 
themselves of rooms and places which had 
before belonged to fishing-ships, and directs 
that all such rooms shall be restored to 
public use. The inference, then, would na- 
turally follow, that such as were possessed 
uZ 'he year 1685, were not to be dis- 
turbed. But the act goes on to declare, in 
express terms, that all such persons who/ 
since the year 1685, have built, or at any 
luture time shall build, or make, any rooms 
or places for fishing, " shall and may peace- 
ably and quietly enjoy the same to his op 
their own use, without any disturbance 
from any person or persons whatever." 

The statute of William does not define the 
quantity or quality of estates ; but it fully 
recognizes the right of quiet possession, which 
supposes property of some kind; and in this 
it IS confirmed by the statute passed in 1811, 
for sanctioning the sale of the ships' -rooms, 


ons which 
on. The 
be posses- 
lired, and 
ther plan^ 
le Crown, 
and other 

island it 
ty in the 
and, and 

and other 
;o all His 
t with an 
s of indi- 
ince the 
hich had 
d directs 
stored to 
ronld na- 
be dis- 
JcJare, in 
ms who/ 
V at any 
ly rooms 
y peace- 
to his or 
efine the 
t it fully 
M, which 
id in this 
in 181 1, 


which directs such rooms to he " granted, 
let, and possessed, as private properti/, in like 
manner as other portions of land in New- 
foundland.'' lu the statute for confirming 
the existing treaty with the United States, 
the right of settling upon such parts of the 
island as the Americans are permitted to use 
for fishing, is reserved to His Majesty's sub- 
jects ; and it is also «igreed that, after such 
settlement, the Amerians shall no longer use 
them without the permission of the inhabit- 
ants or proprietors* By a decision, also, of 
this Court, affirmed by the Regent in Coun- 
cil, so late as last May, the right of private 
property in the soil of this island m judicially 
acknotvledged. But it is unnecessary to 
multiply instances, or to look further than 
the statute of William, which is, at this mo- 
ment, the great title-deed of all the valuable 
fishing establithments in this island, and 
which creates a facility of acquiring and 
transferring property in Newfoundland, al- 
together unknown to any other portion of 
the King's dominions. It is to be observed, 
however, that the statute of William only 
relates to such parts of this island, as are 
actually available to the fishery; the other 
parts remain within the power of the Crown 
to grant away, or to retain, at pleasure. 
Several written instruments, in the nature of 
grants, from different Governors, have been 
laid in evidence; and, among others, a grant 
from Admiral Edwards to Winter, of apiece 
of ground adjacent to the one in question, 
and, also, within the boundaries of Fort 
William, as described in the order of 1760. 
These instruments do not bear date earlier 
than the year 1757, but they refer to others 
of a much earlier time \ and one in particu- 
lar recites a grant as having b"jn made by 



The Kino 








pn'f«< in llio rei-n of Clinrlps II • i. Hie rents ,?Lm^f ■',"''™' ''"y. ""'I 

ther Co m?'v ext^n ';" ^ '""" "''""= i*'"- 

areappliSe!''no49'K?.'' 'j- »' "'.^^ 
• Jlct under ivl i,l. .; ,' ■"'? '^"•K-tlie 

the laws o"L^I„".,ri natnre acco.,lh,g ,„ 
ye applied to NeX„rdl»J^."'^^X"rV"; 

wc// in resoect nft/,. y. Crown, as 

as the SZf^fV,Zt!l-','''^Tf'''''- 
apply also. 1 knnw^ i- '""'."• *'"'"''' ''«t 

Xi are not provrde'MltV"'" ™'?'''^- 
'aws,thevareenfnri„i , *'''"''^^« '""al 


.f*N™^*:dT5°'%t'whS""*' '•*»*"■• H»to,y 

(t)Tll.21stJ„.,.c.,4. Tl,.„_„..v. ; .. 
^«... -a. Fir.,. ^.., y /."X'n;',-;-,-*; o^Ki.» 


II * It cnii- 
I Rroat number 
sent (Jay, and 
fn lorm one of 
tnue. Since, 
e island have, 
anLs of those 
i" within the 
s which aj)ply 
its derived, or 
'•' them, must 
common law 
s of the Mo- 

fnr as they 
e Kinff—tho 
>'<!8 its juris- 

*• to deter, 
according to 
lie same can 

This Court 
and subject f 
hat I do not 
ns which the 
^it necessary 

Crown, as 

should not 
?r colonies, 
press local 
il my hnm- 
y the wis- 
ng, there- 
5ly to the 

««»'« Histoiy 
havo beea 

tlUSCO, ihfCG 

>ign of Kioi; 
:. I. C. 14; 




case before me, I must try the title now set 
up for the Crown by its own strength, since 
tiie defendants have shown an undisturbed 
possession of more than twenty years. The 
evidence to support the pammount title of 

I the C.own, consists merely of an order and 
memorandum found amon^ the records of 

^ the Govemment-oifice, which are supposed 
to affect the present case, either by bringing; 
the ground in question within the boundaries 
of Fort William, or by raising a presumption 
that the occupancy of Hmvell was only per- 
missive at the date of the order. Could 
either of these points be established, or even 
corroborated, by other evidence, it would 
have an important bearing upon the case ; 
but, unsupported as they are by any regular 
proof, and completely at variance with the 
fact of the boundary of the fort, as it is record- 
ed in the government chart of 1804, 1 cannot 
safely consider the unsupported dictum of 
fiu order as conclusive upon a point which 
would involve in its consequences a pretty 
large bection <if the town, and disturb the 
rights of individuals to an alarming extent. 

(and 21 J«9. ^, C. Id ; bafio^. each of them, th« Muting 
lAe/MMMMfMo^Zoncb Man object. Bat it is certaio tbit 
til* 21 lao. i, C. 14. is the chapler here referred to by 
: Sir. Fwhui and his doctrine apon the intereeiing qcestioQ 
faised in this caiisa may, 1 ooooeive, bb shortly comprised 
io these two propositions :— ■ 
I Irt. That twenty years' undisturbed and a^ferse pos* 

I ssssion of lands In this country by a stibjeol, will bar the 
J Crown of a right to tMer on those lends, and compel tbo 
1 Crowo to establish a striotly leaal tide to them, bv force 

2d. That midyears' undisturbed and advene possession 
t>f lands in ttiis coontry tv a subject, will furnish him with 
<« ampleU and petfixt Utle to those lends, even aoojaif 
the Crown ittelft under the 9Ui Geo. III. o. 16. 

It should, however, ba borne in mind, that this doe« 
uIqs doe? not apply to such lands as, by the lOtb & lltb 
of William III., e. 26, are exclusively appropritted. and 
pvtieululy dvdicatsd, (o tk» mm oftlu^theritsi 



The Kino 







however, to beHevl Vh-^* • " - °' ^""^ *'''»*'y» 
island could brWh''» ^°- "''""=• «''*''« 
public fortifications 'aSiM«^''" "^'^^ *'^^ 
to suppose that ihn 1 '• '^ '"orenutur.; 
I^een 1^,1 i„ J^Znf"^'' "self mi^ht have 
tenantry of iwJT '""''?"• '^'^'"^ the 

ment-o/fice, wU^.l, *^ 1? '^ ^" the Govern- 

^nowIedffmenT f om iP'^'nl ''^« "" «<^- 
effect, or Soi.Mt/t'^''' ^""'^'^ *« that 

^^itnesses, vho wJi K^^'"^ ^"^^^« '« the 
«»ftht naturllly Iffnfn" T«5*'^"'-«' «"J 
cumstancr 1^,; 1'"^°T;^^ ""^ «"<^h a cir- 
a"y under the eye^Til"^ ^^ l'^^" ^^ntinu- 
has been staicd and n^^ Garrison; and, as 
tban once been the Ik- **^?'^^' ''^^ '"^''e 
the proprietors and thro'i ''"^'^^ »^^*^«en 
meantime, it has olnlv ^'^^'!?;ce- In the 
J»and, without r/n?/^P^''^'* from hand to 

ors for a?uIUo::fde/aton^%''"i^P^^«^^^^ 
disposition to uDl,o?ri ? Fjelmg every 
Crown, and at th.J **? "S^'^^s of the 

claim has OeenTou^,";'^^- .^^^^ P^f e„t 
been proved that thn nlf i' , •'."•"' " I"*' 
possession of tr«ound^n? *'''' ^'''* ''*'' " 

nantcy, and th„.^? "eknowledgment of te. 
dopant cLts on2e'a""«- "''"^ 

li ■ 

' l>p correctly dc- 
•y Capt. Palliser, 
y the ground in 
ind which, it is 
itcd by Admiral 
not very easy, 
Governor of the 
>. give away the 
IS more 
tself might have 
'on, 'i'iiat the 
nissive, we are 
J intheGovem- 
»j? like an ac- 
himself to that 
known to the 
Jighbours, and 
of such a cir- 
heen continu- 
fison ; and, as 
Jed, has more 
treaty between 
ance. In the 
i from hand to 
' to title, and 
5sent possess- 
Feeling every 
ghts of the 1 
''om^ justice : 

■' present 
'-iii^iX it has 
'S have had a 
'ards of sixty 
gment ofte- 
1 the protec- 
ates against 



John Ryan against W. & U. TuoMAf. 10(9. 

J. n E parties held conterminous parts of 
the Hea-shore; and the plaintiti' left, on his 
side, a cove, or space of shore and water, 
without erecting any building thereon. — 
Tho defendant!!! built wharf ut the extremi- 
•ty of their bouiidury, and yet insist on ma- 
king use of the cove which the pluintifT had 
left for his own use. The right to this cove 
formed, therefore, the sole subject of the 
present action. Several witnesses were ex- 
amined, upon whose testimony the Chief 
Justice declared — 

That the plaintiff having been in the pos- 
session and occupancy of the premises for 
more than twenty years, had a eood title un- , 
til the contrary he made out oh me part of the 
crown^ or the public. That the occasional 
use which had been made of the water lying 
over the cove, by tba defendants, did not 
amount to such an interruption of the plain- 
tiffs possession as would destroy his title, or 
found a claim in defendants to use it in 
common with plaintifi' as a matter of right. 
That it had appeared, in another case, that 
it was not unusual for persons living adjoin- 
ing to each other to allow the use of water 
which was not immediately wanted ; but 
that it would shake the fonndationa of all 
property to suppose such an indulgence 
could grow into a nght. And that, there- 
fore, leaving the public rights to be pursued 
in such way as mny be deemed proper by 
parties concerned, he should determine this 
case in favour of the plaintiff; though, as no 
notice had been given to defendants to 
discontinue the use of the water, the dama- 
ges, or rent, for the use and occupation 
must be merely nominal ; and each party 
must pay bis own costs. 

Avtfust U$t* , 

. Twtnly yeirk 
undiHlurbtd pof 
••ssion of ft cor« 
will entbU iba 
ptily wboliaihad 
8uch possetsion lo 
sustain an aelioa 
■gainst a wroog- 



d iUi 

r' m 

i\ ^ 

nvaned Ibe judg- 


icmlmer to siiiiajii' 


1'^ 1 


Parkin & Anderson appellants, 
PoNNELi ^^ Others respon^eiils,, 

Coi'a^tSb^rTal'^^ *'^ '"''^^^*^ 

It appeared, from the transcript ofthcDro- 

ceedmgsin the Court below, that%n the L7h 

of jFanuary last, Bomell and partners sued 

W jX"i °y«i"?^e« against>c«wA Por^^W 

o?^^ft iT** ^«^f r* *^ '^^^^^^^r the sum 

n^iiVA^ '^*'' ?"^ **»«* 'he cause was sub- 

tifl Li '• V-^^* .''l® <^efendants should pay 

So „Tf ^J- ^*P^'''^' ' ''»« «"™ of forty 
S^cot'oter ""^^^^ ^' '^"^'^^-^ -^ 

deseed ^\\'l°! "''' P^^'^^V^he Ch^f Justice 
oecreed^ that so much of the judgment be- 
low 98 adjudges the sum of £18 17? to be 
dueto the plaintiffs by the defendants "> 
«p/wwe* " together with the costs of action 
should be affirmed ; but that so rnuch of 
£40 '-r 3- '^^"^^^* *»»« further sum of 
,W i**^® ^^*"^ ^^""""^ •'een found by the 
pUmtiffs, or any wi^/^we whatemr laid be^ 
ch^«Tf Ih *'2*'^ '^ '^^ «»** ^^^"^''^'•y to the 





the Surrogate 

latt on the 19th 
partners sued 
Josiah Pmkin 
Jcover the sum 
ause was sub- 
found by their 
ts should pay 
is seventeeen 
sum of forty 
damages; and 

J Chi^ Justice 
judgment be- 
8 17*. to be 
endants **for 
►sts of action, 
so much of 
Pther sum of 
^ould be re- 
found by the 
le part of the 
v«r laid be* 
trary to the 
i|f put such 

Andrews against And.bews« 

jf^CTION to recover the possession of a 
certain plantation situate at Port-de-Grave. 
Several witnesses were examined, from 
whose testimony it appeared, that the party 
under whom the plaintiff claimed^ had been 
in possession of the property in dispute for 
more than twenty years, and had often been 
heard to say that he had made a will, and 
therein devised this property to the plaintiff* 
Upon this evidence the Chief Justice de* 
cided, that the room should belong to the 
plaintiff, agreeably to the supposed will of 
William Andrews, But that, from the length 
of time which had been suffered to elapse, 
all questions of rent should be laid out of 
the case, and the judgment should be merely 
for possession of the property. 

lyiicHAEL Dunn against Rodebt Brooks, j^ . , 


November 4th. 

Oral testimony 
of the conleotfl of 
a will which could 
not be fouDd, ad- 
Diitled by the 
Chief JHUice; and 
judgment given bjr 
him according lo 
the directions of 
the will so profed. 

.Action of trespasses; damages £ftO, 
and to recover possession of certain premi- 
mises in St. John's. 

Simmsy for plaintiff, states, that in June 
last, the plaintiff took a lease from the de- 
fendant of certain property in St. John's, on 
condition of his paying the arrearages of 
fent due from the former tenant, and also 
future rent. Tha^ plaintiff had paid the ar- 
rearages, and was in possession, when the 
house was burnt down in July last. That 
the plaintiff himself was at the Labrador, 
carrying on his fishery, when the fire took 
place ; and that his wife, on being applied 

tt\ aai#l aha t*e\n\A Aa nottiincr nn#i1 how kna- 

band's return. But that, notwithstanding 
this declaiatioa ou her part, the defendant 

The decision of 
a cause postponed 
by the Chief JuU- 
ice, uuder an «x- 
peelaiion that a bill 
was in progress in 
Parliament/ the 
provisions of which 
were to be retro'* 
tpective, & would, 
consequently, bear 
upon the questioB 
DOW ID dispute* 



took possession of the ground then lvm<r 

piaint ff, who never offered to surrender and 
^S''" r^'^.'r^ as slill subsSng: '' 
ih.y^' r defendant, admits the fact of 
the lease to the plaintiff, and the destruction 
of the premises by fire; and further states 
matter of fh'""^ "'^'!i'' '''"-' the sub el" 
vvS^ affected by the provisions of the bill 

der±„^:? p"f '" "^^ "."^ ""^^•' th~- 
,.t!- ?w ^''*^^™^»^' fo"* widening and im- 

{he'nslj:'!'^'-^^^^^^- ^^^^ ^/-/ ^JSa 

Tv.H!''f».^^"7''^.^i;^ ^^^' «**'' ^ow stands is 
J^.Jth, Ihe p aintiff, who has a right to retain 
his lease if he likes to do so ; but it L wS 
he knowledge of the Court/that a biU t- 
presshj framed to meet this and similar ca 
ses, has been laid before the ho-^rdTnl T' 
approved by their lordship:, tdoSv 
announced by the secretary of state for tie 
colonies, to the Governor of this island as 
on us way to Parliament, for the purpose of 

pass^':,rt ''''\^ '^"' andJ^uKld 
pass 1 also know that it will have a retrn 

Srof'K'^"' ^"' must make L/t: 
frmonths."''"' ''''''''' tolawthis'day 

stati^ ovT tS? rutririlj^^nt^Vh'^ T 
fate of the bill will b'e knolTan^^^^^^^^ 
justice done between the parties. ^"^''^"^' 




I llieii lying 
St the will of 

nender, and 

the fact of 
? destruction 
rther states 
the subject- 
t»uld be ma- 
s of the bill, 
T the consi- 
li^ Justice 

> stands, is 
tit to retain 
it is within 
a bill ex- 
similar ca- 
d of trade, 
1 officially 
te for the 
island, as 
purpose of 
fit should 
* a retro- 
e any de- 
^ this day 

the case 

when the 


William Newman against Thomas 
Meagher and Others. 

Jj HIS was a summary proceeding in cove- 
nant, for the purpose of compelling the de- 
fendants to rebuild certain houses and tene- 
ments situated in this town, and which were 
destroyed by the fire which consumed a 
considerable part of the town on the night 
of the nineteenth of July last. 

The parties considering the case suffici- 
ently raised for the consideration of the 
Court, by their written statements and ad- 
missions, the same came on to be heard this 
day; when, after having attended to the 
arguments which were urged on both sides, 
the Chief Justice delivered the following 
decision upon it : 

From the documents which have been laid 
before the Court, and the admissions of the 
parties, I collect that the houses and the 
other buildings which form the subject- 
matter of this action, were leased by the 
plaintiff to Andrew 2/iomfan and Alexander 
Hill, by deed, dated in 1801, for the term 
of twenty-one years, at the rent of £250 per 
annum, with a general covenant on the part 
of the lessees to repair, and without any 
reservation against fire. That after some 
intermediate assignments the premises came 
to the defendants as assignees (in fact at 
least), and were in their possession at the 
time of the fire in July last, when they were 
entirely consumed. Objections have been 
raised to the liability of the defendants, upon 
the grounds of informalities in the con- 
veyance to their immediate assignors. It 
is not denied, however, that they were 

in nrkdOOBCmn nf t^-tt^ rkvirrinnl \^n£,^ .-.» J . : .1 

— £---•"'• itv-n ijt hti\j vrsigtiiui Jcabc, ami uiiiil. 

rent to the plaintiff, agreeably to its pro- 
visions ; and it may be the less necessary 


November 22rf, 

Tlie dfstructiflii 
of premiset by fire 
relfasps the l<>»8F'e 
of such prennsps 
frono ail the cov6> 
tiiints contained in 
tlie Itase, if he 
thinks proper to 
uurrrndfr it, iin't<>r 
the custom uf this 
Ion II. 




Mbaghbr and 




principle whar~ed Z"!"'-'''"'', 
•I>« Court ia .imil^Pra™,""'"""" "^ 


ties produced tlieir mS^ «nj ""* P.": 
to the concaitent test m^/!.f '' "PPea'ed 

W ofTh "™' *o ••« <'i"p«te5^"",h A 

express exception against fire • an^ u ™ 
fS' ",7! P™<=« V- himllTd'osot En '! 
il^: JtheMS'eTffecTlr^'''"^ P«""' 
jtshonld.0 rvVt^'aL'eirrneTii'' 

l«- thi case befi;e-;;;^Th;,-- '--^ 

f : \ 


9 1 feel myself 
•pon the same 
he decision of 

'arson, it was 
ation of wit- 
residence in 
d to have ac- 
e of its local 
se has a right 
mt of Us be- 
nt was again 
the case of 
ished to its 
a point de- 
t could not 
ch the par- 
>d appealed 
fery person 
Court, that 
d» that the 
ade against 
rrender hisi 
all future 

of decision 
and, that 
to rejbuild 
ere w^uld 
•e les^ee^s 
'«ty by an 
and it is 
o in Eng- 
? prevail 
n deter- 
les, as a 

( '■: 


ed to repair ; there is certainly a plain dis- 
tinction between repairmff and rebuilding ; 
and the Courts, in determining for the first 
time, that a covenant to perform the one, 
extended to the performance of the other, 
must certainly ha,ve so determined upon 
the princ'ple of such being the intention of 
the parties to the covenant ; and, by the 
same rule, they would have made a contrary 
decision, if that intention had appeared 
otherwise. Indeed, the intention of parties 
is the only just criterion in determining con- 
tracts which do not interfere with positive 

The Taw of landlord and tenant, with their 
various rights and liabilities, as observed in 
England, is very imperfectly understood in 
this Island. Deeds have most commonly 
been drawn from old precedents, by persons 
unskilled in the law, and, consequently, 
unaware of the technical force of what they 
copied. It is, besides, the constant practice 
here, to let houses to the utmost extent of 
their value. If the tenant be liable to rebuild, 
he must insure the buildings ; and, from 
their being situated in a wooden town, close- 
ly built, in a country requiring fires all the 
year, and without any further legal provi- 
sion for extinguishing fire than if such a 
casualty were not within the scope of human 
probability, the insurance must necessarily 
make a large addition to the rent. These 
are cu'cumstances of radical difference be- 
tween houses situated in England and this 
island, which cannot but be taken into ac- 
count in collecting the intention of parties 
to a lease ; and, considering them all, to- 
gether with the general understanding which 
prevails in the place, I hold this case to be 
within the local custom ; and th^t the de- 
fendants, having tendered their lease imme- 





Meagher and 




_i I 






fwmtufrn "'" ^r"' ''•^ thereby discharged 
irom the covenants contained in it. 

Baine, Johnston & Co. a,«-«,«5^ Cosnard 
& Janvrin. 

JDecember ad. 

A person re»U iW lSTJP^^, i"* T?^'^'' ^''^ «um of Xl,500 
ding abroad sends '"^^ (?o«as sold and delivered. 

• vessel to this is- •• "® defendants, hein<»- residnnt Itov/^r,^ «i 
l.«d. and gi,es in. seas. the Court /no, i "ed Tf inv .^^ 
structiom to an DearpH tn ♦!.« „ *• ^ . . " ^"^ P6''S0n ap- 

here. to procure a "f ""l *''^ "".^^^^^ ot the ship Ze^c^^^gr, which 
cargo of fish for {"gether with the cargo therein Jaden hn I 
her; directing him, beei, attached in this c^se, came befor'e the 
atthesameliine, to Court, and stafpri #l,o* l . "*® 

•pply the balance instnipHnna /^^*^", "^^t J»e liad certain 
th.n due from such Jl''"'^''*'"' Z''^?. 'he defendants touchinff 
agent lo .he pay- f»« .voyage to this country. and prayed hf 
«.e„t of the cargo advice of the Court, whether he was autho 
nf fish, so far as rized OF not fn mnl^ ^ i i auino- 

.l.e same wonld the action Th.*^ '^P* Wearance to 
«o. and to drair i".. 7° ^"® master then produced his 
b.Hs upon Wmfor 'nsti'uctions ; and it appearinff that hp in 
the residue. Act- gether with Peter ZemessZtr ? ! vi ^I 

".;,M,nder these di. of this town w«« o.^K ^ Jf ' ,^ '^^^''^^^t 

actions, the agent ant^tn^H^.u ^"^^^"zed by the defend- 

chases a quln- ff^ }^ Pu^chase a cargo of fish, and draw 

t>y of fish^from bdlsfor the amount; and as this action wa^ 

««(ne merchants, ^^r the amount of the carn-ft nf fioK . . 

-'.o were not only Under SUch iLtn.rHnni^ f Pu '' P*'^''"''^*' 

^K(, that he was defendnnf« . l ' °°®' ^^^ the use of the 

-r.g as au agent. ,heir sino '^H "^ f *?"."^ ^^^^^ °" ^^avd 

but seem, also, "/^'^ siup, and attached in this cause thp 
from the whole ^ourt cons dered the cant^i,. i«^ ! ' . 

n?t°:nSs ""'''- ^^' ^efen:tet^;;- rxt^^^^^^^ 

guilty of a breach of his i«s.rucUo„. 1, 1, Kh°^ ""' r*"*' J''' ■«•»' *"»» 
v«8el of the principal under the e" oec^I i«» ^ * ^ " •'"PP"* '"' ''«■"' *»•« 
actually now there or his benefit ZcTf f^^r ^''.fJ'' P'^ '" '». ""J « 
the seller for it. siaci. h» -J !•."••>,„ L^^'/^ff'"* ''«'d him also liable to ,,.u 
article. ' "'"'''^ ^"""'^ «''h«f «o do w, or tp return "th'e 

■^ A , 

imi i mh i 

■"i'-* J«*KI;S!i*eaRa«wfniataM»i«iw 


by discharged 
in it. 


urn of X 1,500 

at beyond tlie 
ly person ap- 
alf. VVJiere- 
cester, wbidi, 
n laden, had 
16 before the 
had certain 
Its touching 
i prayed the 
i was autho- 
tpearance to 
roduced his 
that he, to- 

a resident 
the defend- 
, and draw 

action wag 
h procured 
? use of the 
?n on board 
cause, the 
nipeteut to 

lit Was given, 
paid in bills, 
ireign princio 
19 agent was 
oo board th« 
'Or it, and is 
liable to pay 
retura 'tbs 


the master appeared, and denied the cause 
of action. 

Jo/m Boyd, for himself and partners, 
explains the nature of the case, and calls 
several witnesses to support his statement. 

Simms conducts the case for defendant?, 
and contends that they purchased the fish 
from Lcmessurier, and have nothing to do 
with his agreements or purchases elsewhere. 
To prove the usage of the place, with re- 
spect to purchases and sales by commission- 
merchants, some witnesses were produced 
and examined. 

Per Curiam. — Upon the facts which have 
been laid in evidence, the question raised 
for the consideration of the Court is, how 
far the defendants are liable to the plaintiffs 
for the value of a cargo offish delivered by 
them on board the defendants' ship; and 
whether Lemessurier, who contracted for 
such cargo, is to be considered, in reference 
to the plaintiffs, as a principal, or an agent 
of the defendants. In a few words, to whom 
was the credit given? 

The principle of law is very clear, that 
where one person contracts with another on 
behalf of a third party, and discloses that 
fact at the time, he is not generally liable on 
f .ch contract. But the loose manner in 
which agreements are frequently managed, 
and the consequent difficulty of ascertaining 
the real intentions of the parties, make the 
application of the principle not quite so cleaif ; 
and this is precisely the difficulty in the 
case before me. The distinction between cont" 
mission-merchants and other agents, which is 
sought to be established upon a suggestion 
which fell from one of^lhe judges in the cas« 

rtf PntfifQQtk V frandfiJSfinim flS RfiSt€iSi\ 

— a « ,^„ — -5 ., ^ ^ yp 

is not founded oa the authority of that cas^ 
nor in anything which will bear the namd 



Baine, John- 
ston & Co. 



li j' 



Bainb, John- 
«TON & C©, 



a&'^'* ^T]y* « »"^'-<^hant residing 

agen?''herT^ ^¥l''^^^ ^"'"^^'^ through hin 
foreii 1 • J^^ ^^»^''*' disinclination of 
.Vr7J^ "^^i-chants to do so, may afford a 

tl e casr n.t A '" V^^^'^at'^g the evidence of 
facts rornnnr^'"^ !"^'^^- ^^^^ Particular 


knerrJ^rfJrr-^'' '"'« proof tttSy 
JMiew the defendants as the rpil nart.Vo • 

^ that i«»««,„>, ,vas merely an TZ' 
im^Mumr appears, by his evidencT to 

Hj • .; a'tnough it is not expressly so sla. 
in .h" "'*,"'"** *'"'<='' passed between°I,em 

conrirfp^i^k- *?? ""y- '"^eed, that he 
ca^o a,, .r*" ''■ "■* ?"'•<=''«»«>• of the 

nicated w?th V!: **^'.**»ereupon, commu- 
S'''.r>J'^:.f?'''^r'^. ^ho wrote to 

iiaformed wh«??K ''^*^ **" ^^'^^^ ' «»^' being 
¥uomea what they were, he desired him to 







lant residin<;^ 
through hJH 
inclination of 
nay afford a 
hie intention 
5 evidence of 
he particular 
are, 1 ihink, 
t conclusion, 
ring to such 
1 occupation 

3fore the ar- 
le plaintiffs 
of (he de- 
•t, and they 
» fact, they 
he agency 
?dit. This 
>f that they 
1 parties in 
and knew, 
y an agent. 
idence, to 
lew him to 
sly so sta* 
iveen them 
f the LeU 
, that he 
iser of the 
hat he re- 
he was re- 
Boyd had 
spoke to 
1 that he 
een shil- 
^rote to 
d, being 
d him to 

trmsuU the masltr before he gave a definitive 
answer. Are these like the acts of a mer- 
chant acting for himself in a transaction with 
another merchant of this town? Is it the 
act of a resident principal contracting for 
himself? But there is one other fact which 
appears to me to be conclusive that JLe* 
mfssurier was regarded by the plaintiffs 
merely as the agent of the defendants ; and it 
is this : After Lemessurier had agreed with 
them for the two thousand quintals of mer- 
chantable fish, Meniet the master, agreed 
with Jioyd for a farther quantity of Madeira 
fish, to complete the Leicester's cargo ; and 
he agreed without noticing Lemessurier or 
mentioning anything as to the mode of pay- 
ment, which he admits, however, was to be 
by bills on London, in the sam^ way as for 
the other parts of the cargo. What am 1 to 
infer from this to have been the understand- 
ing of the plaintiffs all along, but that they 
were loading a cargo of fish for the defend- 
ants, to be paid for by bills of their providing ? 
The Madeira fish was either sold to the 
defendants, or to the master, or to Lemes- 
surier; Lemessurier disclaims all connex- 
ion whatever with this part of the transac- 
tion ; and it is proved that he was neither 
consulted by the master, nor had any com- 
munication with Boyd. It is hardly to be 
presumed that it was sold to the master upon 
his personal credit ; and we are forced to 
conclude that it was delivered upon the cre- 
dit of the defendants, and upon the faith of 
receiving those bills which they had autho- 
rized the master to draw in payment on theif 
correspondents in London. It was to these 
bills that the credit was really given; they 
are the connecting link between the plain- 
tiffs and the defendants throughout the whcle 
transactioo, both with respect to the fish 


Bainr, John- 

STUN & Cu. 



: .1 


JJatne, John 

aroN & Co. 








snpplied (brouffh the master and thronirl. 
J^emcssuner. Between the two I ran "re 
no substantial distinction. The far li^v wi^h the piai.titrs agreed to furnis aVa 
he mn i^"'"!'*^ of fish, at the bare Cl of 
the master, whom they did not know is a 
pretty strong proof that they looked o;er to 
Prmcpals. whom they did know ; and ha^ 

vhi^h":uV^'\"r.'' ^^ «» "nde;.tand ng 
>vhich, although li IS not made to a^oear bv 

IVZl^TT' "^'•'^^^ " P.-.n:p'u.>n a^ 
e s o the d f"?''' ."^'^ they known 

tlr.^« .f fu • ^^^" '""•'^ particular in the 
surfel aLMT"* ««'*^!"^^"t. both with w! 
surier ancj the master IVhon r^ 

I! etc" t5"' ^'i-^ '^•- •' '«^''"» ^-r the 
i^P S /'/ ''T^'^ '^*^ principals, and 

iTimiU ,f •'''l'"P''"'''y ^«'"ff the same to 
I idmtiffs. It js because he considered thev 

v^ful^jf apprized of Ins characteTaTa^enJ 
rt f 7'*r>[*>'- ^hom he acted? ' 
J he defendants have placed a good deal 

of reliance upon the delivery of tife rece n?s 

on*bo:r^'r 7 '' '^'^ ^^ ^'^ '^ "'-' «"X 
on ooaui to Lemessurier ; but the clerk nf 

the plamt.ffs, who was called by the defend 

fn L'^'"'? '^'' ^'^^ ••^^^•Pl« w^e del vered 

hi if """^'/^"''se of business, and whhout 

the knowledge oi Boyd, who ii the only one 

of the plamtifts now in the island. As soon- 

saicf ?rf ''"' '"^^''"^^ ^f ^'^^ circumstance!he 
said there was no occasion for passinro;er 

fnir*^ '^'^ ^"""^ P\^ce 6ond/de, and be- 

on at^'L^^^^^^ 
on account of Lm^wicr. If, thprpfprp 

UD^bl *t ^"f ^^^i«variable custom as Is s^J 
"P by the defendants, the inference which 


li\ A 


• and llirongli 
wo I can see 
e farility with 
iirnisli an acl- 
'■ bare word of 
't know, is a 
►oked over to 
w ; and that 
to appear by 
esiuiiption at 
tliey known 
)robable they 
cidar in the 
with Lemes- 

iding for the 
icipals, and 
kicenient to 
} swears, he 
r the same to 
iidered they 
er as n^ent, 
? acted. 

good deal 
the receipts 
3re shipped 
he clerk of 
the defend- 
re delivered 
nd without 
he only one 
. As soon' 
assing over 
[uently, re- 
de, and be- 
if difficulty 


m as is set 
QCe which 


would be drawn from it to fix tlie property 
in Lemessinier, by the recei|)ts beinj»- pass- 
ed to him, is rebutted by the fact o( the 
passing of the receipts being afterwards coun- 
termanded. Why should they have been so 
countermanded in this pariicular case? But 
supposing that all the receipts had been pass- 
ed by Boi/d to Lemessurier, and detained by 
him, 1 cannot see how that circumstance 
could have varied the case ; — the receipts 
are merely acknowledgments by the master 
of the quantities delivered onboard theship, 
and it is as essential that an agent should be 
furnished with these particulars as the prin- 
cipal himself. There is a difficulty, how- 
ever, in the case, which suggested itself at 
the opening, and I am not clear that it is 
now entirely free from it. Upon looking at 
the instructions of the master and Lemes- 
surier, I am of opinion, that they have ex- 
ceeded the authority which was given them, 
Lemessurier was directed to furnish fish to 
the amount of the balance of account due 
from him to the defendants, and bills were 
only to be drawn for i\\e residue oH\\e cargo. 
"Lemessurierj it appears, had intended to 
furnish to such amount from his own means, 
and was in the act of doing so when his in- 
tentions were suspended by his insolvency. 
The fish, however, has been delivered, oftdis 
now on board the defendants' ship. For so 
much as they have received through the 
authorized acts of their agents, they are cer- 
tainly liable, and they are bound either to 
return the supplies, or to pay for it. As the 
case is at present situated, 1 think the plain- 
tiffs are entitled to judgment for the full 
amount of fish delivered. At the same time, 
I shall be happy to afford any equitable re- 
lief in the power of the Court, under the pe- 
culiar circumstanqes of the case. ^ 



liAlNK, JoilN' 
8TON & Co. 



1' t 




Decembtr ll/A. 

Tht supplying 
nmrohanl of » 
pUnl«r ii liablt to 
pay Ibt wagai of 
lh« lerTtnti of that 
planter, to lb« ei- 
tentofMia value of 
•ny fish and oil 
which may have 
come to hit hands 
as ih« produce of 
(he Toyaxe, if he 
kn^«r, either actu^ 
ally or pretump- 
<iWy, that the set. 
vants who make 
the claim upon 
him were in iha 
•mploytnent of lb» 


Patrick Dooley nsrainst Burke & 

__ LAINTIFF WA» a servant of one Man- 
rtssey, a planter, anil recovered judgment 
against Morrissetj in the Court of Session*, 
for the balance of wages due in 1817. 

Defendants were suppliers of Morrissey, 
and received his fish and oil. This action 
was brought upon the judgment, for the 
purpose of following the tish and oil into 
defendants' hands, under the 15lh Geo. IJI. 
Defendants stale that they onky received 
£(45 for supplies issued to the amount of 
^100 ; and contend thathaving received fish 
in payment for supplies advanced, they are 
not liable to account for the same. It was 
also contended that the plaintiff was not 
known to defendants as a servant of Jl/orri>- 
sey ; but upon the latter point there were 
some witnesses examined, by whose testi- 
mony it was proved to have been known to 
defendants that Morrissey had two servants;, 
and that the plaintiff was one of theai. 

Per Curiam, The practice of following 
fish and oil, as it is called, under the 15tU 
Geo. lil. has been carried beyond what the 
framers of that law probably intended.— 
There is an opinion, which has found its 
way among the records of the Court, given 
by Lord AhaiUy and Baron McDonald, 
when they were law-officers of the Crown, 
that the servants' lien upon fish and oil foir 
his wages cannot be traced into the hands 
of a bon&Jide holder for a full consideration ; 
and this opinion is given with a latitude 
which might warrant its application to the 
merchant who receives the produce in pay-* 
mcni of his advances upon the voyage. 
The usage of the Courts, on the contrary, 




tst Burke & 

ant of one Mor- 
vered judgment 
urk of Se8sion», 
3 in 1817. 
rs of Morrissey, 
»il. This action 
^gment, for the 
ish and oil into 
3 15tliGeo.llI. 
' only received 

the amount of 
ing received fish 
anced, khey are 

same. It was 
laintiff was not 
■vantof TWorri*- 
)int there were 
t>y whose testi- 
been known to 
d two servants, 

of them. 
e of following 
under the IStli 
yond what the 
ly intended.^ — 
has found its 
e Court, given 
►n M'^Donald, 

of the Crown, 
sh and mX fov 
into the hands 
consideration ; 
'ith a latitude 
lication to the 
)duce in pm/^ 

the contrary. 


has always been to consider the fish equally 
liable to the servants in the hands of the 
merchant, or in those of the immediate hirer. 
Upon the whole, 1 am rather inclined to 
think the practice of the Courts ri}j;ht as ap- 
I)lied to the resjular receiver, although it has 
sometimes been carried too fiir. 

The correct interpretation of the law 
must, in a great measure, depend upon 
ft practical knowledge of the subject to 
which the law is intended to be applied; 
and, although I should always bend to the 
superior wisdom of English lawyers upon a 
point o( En [(lis h 1nw\ yet, 1 should hesitate 
in yielding implicit deference upon a matter 
of a mere local character. 

In the case of merchant and planter in 
this island, there is an intimacy of con- 
nexion approaching to identity. If the ser- 
vant is to lose his lien, upon the removal of 
the fish from the planter's room, he must in- 
terpose legal process to arrest it ; and the 
Court has had abundant experience of the 
ruinous consequences of such a proceeding. 
If 1 can collect that the merchant-receiver is 
privy to the shipping of the servants, or is 
cognizant of the fact of their being shipped, 
I shall hold the fish and oil received by him 
to be still liable to the wages of the servant. 
But the case must be bond fide, to entitle 
the servant to this interpretation of the law; 
lie must be, actually ov presumptively, known 
to the merchant, and there must be a total 
absence of all fraud. The merchant has a 
right to inform himself of the number of ser- 
vants, and amount of wages. If he neglect 
to do so it is his own fault; but if he exert 
the right, and if any servant be kept back, 
or falsely represented, the servant must 
take the consequences upon himself. 

In the case before me, 1 am of opinioni 





Burke 9i 







Burke & 


that the plaintiff was not unknown to the 
defendants as a servant on the room which 
they supplied ; and as there is no proof of 
fraud against him, he is entitled to receive 
the balance of his wages from the defend- 
ants, as receivers of the voyage. 

January I«l. 1820. 

If objections lo 
the decrees of tb« 
Courts in (his 
counlry were al- 
lowed to prevail 
merely on ibe 
groiiod of tn/brma* 
lity in the c*ursa 
of proceedin(r« 
more than half the 
titles to property 
in Newfoundland 
ix'ould ba uniet- 
tied. A decree, 
or judgmeot, tbere« 
fore, MrUch has 
been regularly en- 
tered, and not ap- 
pealed from, will 
always be respect* 
cd and enforced. 

George Heath and Others og-atW^ Robert 



ROM the following decree, the facts of 
this case, and the questions to which they 
gave rise, will b6 easily collected and un- 

Per Curiam, — ^This is a summary proceed- 
ing by petition and answer ; the petitioners 
setting forth their claihi to three undivided 
sixths of certain plantations in this island, 
as tenants in common ; and praying that 
partition may be made, and possession given 
to the parties respectively entitled to the 
same: and the respondents denying the 
rights of the petitioners to any part of the 
property in question, and praying that the 
matter may be dismissed. 

The only question in the case, hihelegal 
title; thejfacts are hot disputed; but for 
the sake of perspicuity, it may be as well to 
take a cursory vleW of the principal grounds 
upon which the p^itiofieri^ rest their case. 

William Kean, the elder, was th6 com- 
mon ancestor, from whoiii' all parties derive 
their claims. By his will, which is dated in 
1772, he gave his pla(ntaiiot)s in Newfound- 
land to his two sons, Benjamin and Robert, 
to he equally divided hetweeh them. He af- 
terwards goes on to specif v certain condi= 
tions, upon which his eldfitet son, Wmam, 
was to share equally with his br^thfeii, or be 




nknown to the 
he room which 
! is no proof of 
illed to receive 
)m the defend- 

gainst Robert 

le, the facts of 

to which they 

lected iind un- 

mary proceed- 
Ihe petitioners 
ree undivided 
in this island, 
I praying that 
tssession given 
ntitled to the 
denying the 
Y part of the 
•aying that the 

se, ia the leg-al 
ted ; but for 
' be as well to 
icipal grounds 
it their case, 
'as the corn- 
parties derive 
th is dated in 
in Newfound- 
lem. He af- 
i^rtairi f^ORf?^= 
on, William, 
^thi^eii, or be 

excluded : but by a codicil, which was add- 
ed in the following year, the testator re- 
voked the disabling conditions of his will, 
and gave William an equal sJiare with JBcw- 
jamin and Robert. • 

Upon the decease of the testator, his 
three sons took possession of his estates in 
this island, and divided the profits. In 1785, 
JBenjamin conveyed half of his third to Ro- 
beriy and died Some time after, leaving a 
■will, by which George Heathy one of the 
petitioners, was appointed his executor, 
William, the eldest son, died in 1786, leav- 
ing a widow, who is since deceased, and a 
daughter, who is the other party to this pe- 
tition. So stood matters in the year 1792, 
when proceedings appear to have been insti- 
tuted in the Supreme Court of this island, 
for the purpose of adjusting the rights of 
parties claiming under th^ will of William 
K$an, the elder. The order of the Court of 
1792, which is recorded among the proceed- 
ings of the Court, recites that disputes had 
Brisen, and that the claims and titles of the 
respective parties could only be settled in 
England, where they resided ; and durects 
the rents to be brought into Court, to be 
thereafter paid over to such parties as should 
make out their titles to the same, or any 
part thereof. Whether any decree was 
made, does not expressly appear; for there 
is no record to such effect among the pro- 
fceedings of the Court. But there is an or- 
der of 1794, which mentions a decree as ha- 
ving been given in the Supreme Court, by 
which tbe property in dispute was settled 
and divided in siapth parts Sfc. Upon these 
facts a preliminary question is raised— how 
far this Court can Proceed to hear a case 
which has already been determined ? and I 
have no hesitation in s^ing, that if that fact 


Heath & Others 






can be satisfactoril v maH*. tr. 

The Judge ^ho nrll?''', ''^"^ institution, 
foundlandonrfor^ai^j"''' f^-" *« ^«^- 

/a/i*, without a Drofp«;« ! ^?''*'' ^^^»* «^e- 
office to register hi^nro.!}-* ^^^•'^' ^r an 
regularity undeJ sucCf ^^'^'"^- ^^ ^^Pect 
be to Joo'k for that ;\?'h'rh''''!r' ^^ '"^^ 
not find. «„t it mui/nn/K*'^/''' certainly 
>.fc is the first oSt of ii? /^''^^"^« that 
^ are onJy the means by Xh *^''"'*1 '•^^'•*»* 
attained. To disregard A ^^^' ^^J^^' i« 
Courts in this island ' ^® Proceedings of 
would be to unseUle'bXt^ {?HnformaIity. 
to sacrifice the ends jf ?-^ *'*'"' ^^ ^t, and 
Were the present thel^n''^^ ^« ^ts forms. 
I could arrive at the facf^f' ^ ^"'f '" ^^ich 
ving actually passed th^r ^"J^/^cree ha- 

feel myselfaX^tdttr. t^^^^^^ 

can have the effect ot^'j"' anything which 
suspends the payment „T^- ,'' ^^P^'^Iy 
nghts and titles'^^f The 'vLm"'?' •""•"' ""^ 
tl-e property in rfisputl »ere L ""3'""^ »° 
order wh ch waa m„ i * P'O'-ed. The 

alludes to a dec ee 'but'"„ "''\ "^"''"l^ 
to be found ; and V am .^1 ?"'!,'' '^^"'^^ » 
from the loose and unSl*''".* "* '» """fe. 
^hich the iMerTrVT'nTA T'"''' ""» 
framed under an erroneo.r '^*''' "J"*' "was 
ceding order, and that Z T" "^ «''« P'*" 
♦hmg having he effect 'faV^"*' "' '"y 
rights Of ,h^, partt!'hl\tnL«i«»'.<fi« 
-V^ii ine case. — * ^^^u given 


appear, 1 should 
listance of time. 

day, to collect 
so early as the 
I Its institution, 
came to JVew- 
'tha inthe«um- 
^ were, vehs ve- 

clerk, or an 
S^' To expect 
tances, would 
o«ld certainly 
forgotten that 
\ourts; forms 
that object is 
>roceedings of 
?r informality, 
'ties in it, and 
to its forms, 
-ase in which 
Y decree ha- 

I should not 

dt the pro- 
ny degree of 
er of 1792 is, 
thing which 
" expressly 
s» until the 
laimants to 
ned. The 
^ certainly 
•h decree is 
^ to think, 
manner in 
that it was 
>f^the pre- 
s» or any. 

"pon the 
sea given 


1 have entered fully into the reasons which 
induce me to entertain the case upon the 
will of William Kerr, because I am desirous 
of preventing any misconception from cau- 
smg it to be drawn into a precedent here- 
after. Upon the merits, J do not see the 
least ground upon which the respondent can 
rest his case. The testator, fVilliam Kean 
the elder, gave his Newfoundland estates to 
his three sons, " equally to be divided be- 
tween them." These words, in a will or de- 
vise, are not disputable ; they are established 
by the whole current of authorities, to create 
a tenantcy in common ; and they are repeat- 
ed so many times in different parts of the 
will, as to exclude any presumption what- 
soever, of being used unadvisedFy, or con- 
veying a technical meaning different from the 
intention of the testator. It is, therefore, 
adjudged, that the petitioners are entitled to 
certain shares of the estate of the late Wil- 
liam Kean the elder, y'lz.:— Martha Keanto 
one-third, and Geo, Heath to the half of one 
other third ; and that the same be divided, 
and possession given, according to their res- 
pective rights, 

Heath & Others 




Gijfit-UMarfi^^- J 


Hunt, Stadb, Preston k Co. against 


The iandlord of 
premisei not parti* 
culurly dedicated 
to the purposes of 
the fishery, has ths 
•ama remedies for 
the recovery, of 
rent due for such 
premises ai a land- 
lord in England 
would bare: but 
where the properly 
for which rent is 
claimed is merely 
a fishing pUmtum 
Hon, or establish, 
meat, the rent will 
be considered, in 
the event of inso|. 
Teocy, gas current 
supply, and paid 
ratably with other 
demands of that 
class. [See Chaun 
eey against Brooke 

ZrZ if-y^^^J^^^ o(a dwelling-bouse, 
H„I fi' * W ^°*^ premises, in St. John's 
due first of May, and Isl December, 1819. 

1 he case was submitted to the judgment 
off!o*^''"'*''?P?" ^^^ following statement 
rect '''''*''®'*^^» ^'^ "^o^** wtles; to be cor- 

The defendant is a general merchant, resi- 
dent upon the premises, the rent of which is* 
by this action, sought to be recovered; and 
was^ at the suit of several of his creditors! 

Before the declaration of insolvency was 
pronounced, the plaintiffs issued an attach! 
went, on account of rent due the Jtrst of May 
last, apmst the goods .and eflWs of thf 
defendant ; and an officer was charged 
with, and had the custody of. the goods 
property, and effects of thJ defendanfthen 
/W i« and upon the premises in question ; 
and immediately after the insolvency was 
declared the plaintiffs issued a second at. 
tachment for the rent due first of Deamhe^ 
and which attachment was executed up^n 
♦he property of the defendant then in the 
hxmse, stores, and premises in question, in like 
manner as the first attachment had been ex- 
ecu ted* 

The second attachment was issued by the 

thpT, ttn^i ^^*^"^"'/^ ^^'^ publication of 
the [defendant's msolvency ;-the plaintiffs 
considering such measure' requisite, or, at 
Jeast, a safe course tn fntn ,«^--i™/_' _ 
cure mu, ia tha. Ucni ^ii^^'l^ t^l 


Co. against 


sum of £210, 
in St. John's, 
Jraber, 1819. 
the judgment 
ing statement 
es, to be cor- 

lercAantf resi- 
at of which is, 
covered; and 
his creditors^ 
jme Court, oij 
er the statute 

Jolvency was 
;d an attach- 
s^rsi of May 
fleets of the 
i^as charged 
the goods, 
pndant, then 
in question; 
)lvency was 
I second at. 
f DecembePy 
3cuted upon 
then in the 
ition, in like 
ad been ex- 
sued by the 
t>]ication of 
»e plaintiffs 
site, or, at 

) the land- 



lords of the premises, they held over the ef- 1820. 

effects then lying within such premises for ^ — , - _ ^ 
rent m arrear; and of which lien they con- Hunt.Stabb. 
tend they are not divested by the property ^^^^^'on *^ C« 
of the defendant passing by the operation Le Mes^ukieb. 
Of the law of msolvency, mto the possession 
of the trustees of the defendant's insolvent 

The defendant has, during the current 
year, carried on a trade in the fishery at 
Bunn ; and has also supplied planters and 
fishermen in the manner that is usual with 
merchants in this trade to supply such per- 
sons. ^ 

The stores, &c. of the premises in ques- 
tion have been employed in the defendant's 
general business as a merchant ; and, in par- 
ticular, he has made profitable use of the 
same as a commission-merchant, receivin**- 
goods and merchandise into the same stores 
to vend on commission, charging, over and 
above a commission on the sale of such 
goods, a percentage also upon the said goods 
for storage of the same, after the rate of two- 
and-a-half per centum. 

Of the property and effects laid under 
attachment for rent as aforesaid, besides the 
household goods and effects in thedwelling* 
house, and other goods and merchandise of 
the defendant in the stores, there was a 
quantity of goods received by the defendant, 
and lodged for sale o» commission as afore- 
said ; all which goods were attached to pay 
the said rent. ■ ^ 

The trustees of the said insolvent estate 
being desirous to mifce sale of the whole of 
the said effects, it ^as muluAlly agreed be- 
tween the said plaintiffs and th6 Said thistees 
that the said attachments shoutd b»i i^aispd 
and the trustees be allowed to sfell off the 
saidgoodu and effetts without prejudice to 



III , 


llie lien of the plaintiffs, or their rights in 

^^^P^^^ ^^ '^® ^^^^^ attachments for rent. 

PkesVon &°c; V'^. ^^'>i? ^^ ^''^ S«°*^« attached by the 
rKESTON & Co. said plaintiffs, in manner above-stated, was 

tLE Messurier. ^' *"® amount of one thousand pounds and 
upwards ; and both attachments were duly 
executed upon the said goods before any 
other attachment was served on the same in 
any other suit. 

■Per Curiam. Upon the case stated, I am 
of opinion, that the landlord is entitled to his 
rent out of the assets of the insolvent estate. 
Hut lest this decision may be misapprehend- 
ed, 1 shall state the grounds upon which it is 
lormed. The bankrupt acts in Jfin^land 
have vested the effects of the bankrupt in the 
assignees, as fully and extensively as the 
49th of the King vests the effects of an in- 
solvent in his trustees in this island. Rent 
m arrear is held to be excepted out of the 
bankrupt laws at home, whenever there are 
goods upon the land or in the house, and 
there is a distress for rent. Distress is an 
ancient remedy, by which the landlord is 
entitled to detain the goods upon the land 
until the rent is paid ; the assignees succeed 
\9^}l^pe rights, and for the rent, to all the 
iiabilities of the bankrupt, among which lia- 
bilities, is a distress for rent. 

1 .see no reason why the same rules should 
not apply to property held in this town, where 
such property is not immediatety engaged in 
the fishery, which is the case with the pre- 
mises in question. But where the property 
for which rent is demanded, consists of a 
^^Aiw^/^/ttwto/iow, it has been usual to con- 
sider that as ^ current supply ; and the ge- 
neral convenience of the fishery, as well as 
the good sense of the thing, seems to war- 
rant such intprnrpfAfinn f« c.,.«K — -^ ^i, - 

landlord cannot distrain, and need not dis- 




their rights in 
Its for rent. 
Itached by the 
'e-stated, was 
d pounds and 
nts were duly 
►ds before any 
in the same in 

e stated, I am 
entitled to his 
lolvent estate, 
'on which it is 
in England 
mkrupt in the 
sively as the 
^cts of an in- 
sland. Rent 
d out of the 
per there are 
! house, and 
)istress is au 
! landlord is 
on the land 
nees succeed 
t, to all the 
ig which lia- 

rules sJiould 
town, where 
/ engaged in 
v'\\\i the pre- 
he property, 
insists of a 
ual to con- 
and the ge- 
as well as 
ms to^war- 

>K ^»^. Ai. - 
.u i;a9C iiie 

'.ed not dis' 



train; he cannot enlarge his remedy, bnf he 1820 

cannot lose it by the removal of the goods ^_^ , -^« 
before the rent becones due. His claim for Hunt, Stadb, 
rent is as for a current supply, and must rank I*Rbston & Co. 
with other creditors for necessaries for the r ,. *'* 
fif^evy, pari passu. It is, therefore, adjudged ^^^^'^^urieb. 
that the plaintiffs are entitled to full pay- 
ment for all the reiit in arrear at the time of 
the insolvency, to be computed up to the day 
of payment, agreeably lo the lease ; after 
such day thr demand is merely ratable. 



Trustees of Benning & Holohan against 
Brown, Hoyles & Co. 

J. HIS action was brought under the fol- 
lowing circumstances : 

Benning and Holohan carried on a fishery 
at Ferryland, and took up supplies upon 
credit from several merchants in Ferryland 
and St. John's. In the course of the season 
they put off several parcels of fish to such 
merchants; and in consequence of their 
affairs becoming embarrassed at the close of 
the season, *uey were declared insolvent, un- 
der a writ of attachment, in St. John's. 

The defendants were one of the mercan- 
tile houses which had supplied Benning &• 
Holohan, and received fish before their in- 
solvency, which they have passed to their 
credit in payment for such supplies. 

The trustees, having paid the servants* 
wages, now call upon the defendants to 
contribute to the payment of such wages in 
proportion to the fish Teceived . 

It appeared in evidence, that a writ of at- 
tachment, issued at the suit of the servants 
from the Sessions Court, had been served in 
September last, upon certain &shoi Benning 

January 6lh. 

The trustees to 
an insolvent ei> 
tate can compel 
the receivers of 
the produce of the 
voyage to contri- 
bute ratably— i.e; 
in a proportion 
compounded of the 
amount of the sup'. 
plies they have is- 
sued, and the va- 
he of the produce 
which has fallen 
into their hands, to 
the payment of the 
servants' wages. 



li f ; 




- fimt^l'lV^", ^'"■f*-'": wharf; and 
T-....„ ofBB»- officer ^hoseti^l'i^'^'"''''"" '"''»™«<' «"'fc 

* «"• wages ; aif o^'.h^T^ '"orparoJ'ir 

fish to ,„pp,i jh„ secun^JCsle;^ 
for the wages of two fishermen. It waX 
obtain s,ra,ar security on the fish brought 

S':^ TheToL^L'TaT? 4^J ■" 
lose siffht of the fan* s*'* » «»"ai cannot 
qaencf of «.^fiIl1J''o^ goinTa" 'S 
Ae rooms m payment of the masters deS" 
that .htT'*?" *""^''°« "O'hing to pay Vbem 
tion ''f 'Th?^'"'' '■'?'"'''' 'h" law in que": 


^LL/ ^i *fafy applied to the Surroffateof 

a^7fc"*:rff to''^ ?r^ p^^^ «^'^" fi''^ 

•ecuri V Z^tK '''^'^**^^' ^°^ obtained 

t'orofth^^ ter:,\f r:^^" p^«p«- 

followprl thi « ?^ ' .^" *^at they actually 
to St Tnhn'! ^' V^^^^^ed by the defendants 
wafel fll* ^? ^'^'^^^ t^«»r demand for 



f '^e 5cn;a»f, ? They have rTald th^ 
servants to the fuJJ, and «ro r!!:*?^.^ ^^.® 
tied to staad in their-plaTe;airrcaif ^t 


ts' wharf; and 
informed the 
!, that he would 
ight round. 
sly applied to 

secure their 
ofpartof the 

rity was given 
2n. It was to 
B fish brought 
had attached 
eorge llh is 
! can make !t, 
Jhery shall be 
and 1 cannot 
was in conse- 
ig away from 
laster's debts, 
\ to pay tbem, 
law in ques- 
that the ser- 
: their indus- 
Surrogate of 
rt of the fish 
nd obtained 
"tain propor- 
hey actually 
J defendants 
demand for 
1 think, 

1 the acts of 
ig lien upon 
dants, and, 
ants) tvould 

a is, how 
the claim 
paid the 

I call upon 


all who have received fish and oil, subject to 
Hen for wages at the time of receivings to con- 
tribute ratably for wages ; were any other 
rule adopted, the servants would have it in 
their power to elect on whom they would 
claim, and exercise amost arbitrarydiscretion 
over the receivers offish and oil. This must 
not be; the law makes all liable^ and equity 
apportions the \vah\\\iy between all the parties^ 

CoNARD and Others against Daniel Dris- 
roLii and Others. 



Truateei of Bbn- 




Brown, Hoylu 


HIS was a case of prohibition. The 
plaintiffs suggested to the Court, that the 
defendants had commenced a suit in the 
Court of Vice-admiralty, against the schooner 
Active and '^argo, and that the cause of such 
suit was for salvage, or a compensation for 
assistance rendered the schooner while at 
anchor, within the harbour of Bay of Bullst 
and not within the jurisdiction of the Admi- 
ralty. A rule to show cause why a prohi- 
bition should not issue having been granted 
on a former day, the case now came on for 
hearing before the Chief Justice^ who after- 
wards delivered his sentiments upon it in 
nearly the following words : — 

The Courts of Admiralty are regarded by 
the common law of England as foreign 
Courts, proceeding by the rules of the civil 
law, and determining by principles unknown 
to the laws of the land. The jurisdiction of 
such tribunals was once an object of great 
and, perhaps, in the early periods of our 
juridical system, of proper vigilance on the 
part of the Courts of com'mon fave. But the 
little jealousies which fonnerly agitated the 

Jaimary 27<A( 

A prohibition 
granted by the Su- 
preme Court to 
restrain the pro* 
secution of a suit 
instituted in tbo 
Vice Admiralty 
Court, for the re-' 
covery of a oom« 
pensation for aer'^ 
▼ices rendered to a 
▼estel in distress 
In the harbour of 
Bay of Bulls, 

I i 






Driscoll & 


^^l^wfeS 'r !«V? nt ret. 
now too well »!„« •?"''.•'"'•'«''''"'>•• «!•« 
ken; mdZvZ'""' '" l*^ '"^"y ■"i^to 
excess by Wa^^ ™rr"' f^."""'"'' f™™ 
«l'e part of l« S ^ "," '™' "''W'able on 
ofcoTmon aw Til™ '■'•'''/'". "f'^^Courts 
is. in fact aT-lr.fft,''"™''"'""""'' Courts 
•^-untry V'andT s L '* "^o"" ""io" of the 
any .i„d"-eof .I.iV "' ^?^> '» '"'^g'ne that 

constitutfon merelv^o'T""'',''™ •'^ "'« 
his personaTa^otfe;" ""'"'•e^ ""e sphere of 

as weM fn i^i, ""® Court, it may be 

as U now stand." T"T'' ''^^ <" "■« '"^ 

Admiralty shnll n^. 1 ,?'"''''">«. "'at the 
.lone wSin , e T.CZ' «'"' ""ything 
which is done «»«, /!"• "' "I'j; »'"• 'I""* 
the same Khfo- ^r !•"•' ""'' "'« '5th of 

of c^mpIaTn^'a^arnsrS 'e '"* "'^ [''^''"^'^y 
tlie Admiralty, d'eXestirf"",^''"'™'^ "^ 

ha»e?o juWsdieL? ; '''e AdmiraKy shall 
&c. sha» be tri^H • "i 'J"" '""='' contracts 

laws of thetand .'tcentlf '™.'''^'' ">' "'« 
death and maim in ^'^ . •'^''''"" "^"^^s of 
bridires In ih? ^r*' .''"'«™ ''e'ow the 

and;«^/, are within thTcoSnty fold r^'" 

thority, .his d^e/nid^raL'eVrs'to^bf r- 
criterion. ft-wouTdT^-t ir^rC' 


?n laid at rest, 
jurisdiction are 
L»e easily mista 
', guarded frora 
observable on 
m of the Courts 
ction of Courts 
stitution of the 
o imagine that 
•"ould encroach 
d him by the 
3 the sphere of 

for a prohibi- 
urt, it may be 
ew of the law 
e to this case, 
ains, that the 
with any thin j^ 
nly with that 
<1 the 15lh of 
"le frequency 
Jachmtnls of 
all contracts 
miralhj shall 
ch contracts 
lined by the 
tain cases of 
rs below the 
of these st^- 
lat all havens 

Lord Cohe^ 
s, that it is 
may see the 
n the other. 
s great au- 

^-o be too 
' accidental 

more coii- 


BJstent with the good sense and liberal spirit 
of the present day, to consider the locus in 
quo, with reference to its use and mode of 
occupancy, either as a place of frecjuent re- 
sort and ordinary transactions between man 
and man; or as one visited only occasion- 
ally, and not essentially connected with the 
business of the neighbouring land. But 
whatever may be the truth in the abstract, it 
is not necessary to the present case, which is 
clearly not within the jurisdiction of the Ad- 
miralty. The transactions all took place 
within a harbour of the island, aj)ortofe7itri/ 
with the custom-house, and a place of consi- 
derable trade. ^ 

It is su«fgested, however, that as the re- 
medy souj|;ht in this case can only be obtained 
agamst ^'le vessel itself, so i\\e Admiraltu 
alone can afford that remedy. But the Su- 
preme and Surrogate Courts of this island 
have, also, the power of proceeding- in rem; 
an attachment of the thing, is the ordinary 
commencement of their proceedings ; and 
there is, besides, another course of remedy, 
more easy of access to the parties, aud ex- 
pressly created for cases similar to the one 
before the Court, \'iz.~the statutes relatino- 
to salvage. The 12th of ^w»e directs, that 
upon the application of the master of any 
ship or vessel in danger of being stranded 
or run on shore, the officers of the police 
and the customs shall summon as many men 
from the neighbourhood as may be necessa- 
ry for the assistance and preservation of 
such vessel in distress ; and, also, shall re- 
quire from all the commanders of ships of 
war and merchant vessels near the place 
the assistance of boats and men, under the 
penaltv. in casfi nf rpfnaal «<•««« i — a^-,a 

pounds. And for the encouragement of 
those who may aid in the preservation of 





Driscoll Se 





Driscoll & 


tlTih^ '^j'"'""'.' *.^l^^' ^«^« 0" *o direct 
that the salvors shall be entitled to a reason^ 

otL^T''' u ''' V^'** ^y ''•« "^^^ter or 
awners of such vessel within thirty days af. 

er the assistance rendered ; and 'in case of 
disagreement as to the quantum, to be ad- 
n"earP V. ''^a "^l^hbourinff justices of the 
the Bnti«h ^ '•'' *^^P''^«f'y applied to all 
lute, o3d Geo. HI. its provisions arc ex- 

/s bv f f/^'*'' "".-"'^ '^^ assistance sought 
faster « ;i""^^^'af« application of the 
S ^^^^'^ P^*"*'^^' ^'thout the inter- 
yention of any officer of the customs It 
IS stated that these statutes have neve" 

2yere the first instance, 1 should feel no he- 

Which, on the way lo this port, meets with 
bad weather, and puts into a Neighbouring 
harbour to refit. While the master is "n 
shore the wind freshens, and the vessel 
drives to the opposite side of the harbour 
Perceiving her danger, he applies to the 
officer of the customs for advice, who re! 
fers him to the defenc ants. The first oues 
turn asked is, what will you give' Fortu 
ijate y, i„ this particular instance, some un- 
derstandmg appears to have taken place 
between the parties, and the vessel was re 
r.l^T'? her difficulties. But suppose 
that the defendants had refused to go to the 
assistance of this vessel, was therino way 

areonTv^frS'*^'"^- .^I'^ely, laws whic^ 
Z\^.y ?J affirnjance of the common offices 
of humanity ought to be applied, if they can 
be found applicable. ^"ey can 

fJjZ ''/. ?P*?r ^^'^ ^^^'^ statutes are in 

fj^ofTT '"\^^^ ''uommions" used in the 
first Act, us because 1 hold them to be essen! 


fi COURT, 

>es on to direct 
ed to a reason- 
tlie master or 
thirty days af- 
and in case of 
urn, to be ad- 
iiistices of the 
applied to all 
y a recent sta- 
isions arc ex« 
istance sought 
ation of the 
'Ut the inter- 
customs. It 
s have never 
'o; but if this 
lid feel no he- 
Te is a vessel 
t, meets with 
n aster is on 
i the vessel 
the harbour, 
•plies to the 
!ce, who re- 
le first ques- 
ive ? Fortu- 
ne, some un- 
taken place 
ssel was re- 
But suppose 
to go to the 
here no way 
laws which 
imon offices 
, if they can 

tutes are in 
ch from the 
sed in the 
to be essen- 


tially connected with the moral duties of 
mankind, and with the security of the trade 
and prosperity of this island. It is import- 
ant that the inhabitants of this maritime co- 
lony should know that they are bound to 
assist vessels in distress by the positive in- 
junctions of the law, and that they are pu- 
nishable if they refuse it ; and it is proper, 
also, they should be informed that while the 
legislature enjoins this duty, it gives them a 
right to remuneration, and provides them 
with a remedy far more easy, and less ex- 
pensive, ihan any Court of justice whatever 
could afford. I am of opinion, therefore, 
that this is a fit case for a prohibition, in 
every point of view ; but as the Judge of the 
Vice-admiralty is at this moment absent, 
and the case is unusual, to prevent misap- 
prehension I shall say a few words as to the 
authority under whit' aiis process is award- 
ed. Prohibitions ire high prerogative writs, 
issuing from the King s Supreme Courts to 
some other Court which is supposed to ex- 
ceed its jurisdiction. In every country a 
power of this sort must be lodged some- 
where ; and in the colonies it is exercised 
by the superior Courts in the same way that 
it is at home. In the case of Le Caux and 
£den, Lord Mansfield mentions it as of 
acknowledged practice; and among 67m/- 
9w«r5'* collection of opinions upon cases of 
colonial jurisprudence, there is a very full 
opinion of Mr. West, then counsellor of the 
Board of Trade, expressly upon the point. 
The Court of Vice-admiralty at Massachu- 
setts Bay had complained to the Lords of 
the Admiralty of prohibitions granted by the 
provincial judges, in derogation, as they 
conceived, of their authority ; and the Lords 
of the Admiralty addressed a memorial upon 
the subject to his Majesty's Council, by whom 



CoNARO 8e 



Pr I SCO IX 4; 


1 1 ■f 






J)rtscoil & 


fdvisT^^"' J^'/'^^^r^d to their official 
Aft^r w-^'- .f'*'* "^""''^» '« conclusive, 
introductive of new laws, but declaratory of 

^^\2^e '-'^.^P^" »a^ .was before, he says, 
1 am of opinion that they are in force in 

^LtT^''T\ ^^^ ^^' an Englishman go 
where he will, he carries as much law and 
iberty with him as the nature of things will 
bear ; but to shovr that it is impossible there 
should not be a power of granting prohibi- 
tions, wherever the common law fs extend- 

fJctT/ •''*''^'P'. ^"* "^'^d only torecol 
iect the inconvenient and absurd conse- 
quences that would follow were it not so. 

vJ^'^f^ ^^^ ^^"^* of Admiralty in New 
England, take upon itself to hold%lea oi 
freehold or to take cognizance of actions of 
tt.-: ^'''ly'^^i ^^'"^^'y has the subject to 
he h»f 'n^f'Y'^^^ ^? '?"' inheritance which 
law? If 1^'"^ •'"^^^^ ^y *h« common 
/ rf- ^"^^® *^ "<^ power of granting pro- 
Jnb^t^ons, remedy he has none~to the^Cg 

irregular Irom Uie sentence, therefore, of 

« J M?I?T^ u^ri^^"'' ^*^^«'^^' ^^ ™"st ap- 
peal to the High Court of Admiralty at home 

now tar it is absurd to suppose the liur 
|^.ould afford the subject no oTe, remedy " 

the legal advisers of the Crown, by the die 
tun, of Lord Mamjkld, and by ;hat my om, 
experience enables me to say is the unques- 
tionable practice in other colonies. 1 fi 
the relief which is prayed is within the power 

til^»h*^''iT' ""?• *''«^^''"«' """ " pSi- 
tmn should go to restrain the defendants 

m7",rnf.!.''.'"S "ny ft'"'er in.the Vicc-ad! 



) their official 
is conclusive, 
ic/iard,aa not 
leclaratory of 
fore, be says, 
e in force in 
nglishman go 
luch law and 
'f things will 
possible there 
ing proJiibi- 
1^ is extend- 
nly to recol- 
surd conse- 
re it not so ; 
alty in New- 
old plea of 
>f actions of 
e subject to 
ance which 
le common 
'anting pro- 

the King 
for that is 

erefore, of 
>e must ap. 
ty at home, 
e the law 
' remedy.'* 
3f one of 
y the dic- 
e unques- 
!S, I think 
the power 

1 prohibi- 






Jl Ills case having been ordered to lie 
Over for consideration, the following judg- 
ment was now delivered upon it : — 

The plaintiflfs entered into partnership in 
the spring of 1816, and fitted out a schooner 
for A sealing voyage. They took supplies 
to a considerable amount from the defend- 
ant ; and upon their return from the ice, 
thev ofll'ered him their seals ; but some dif- 
ference arising as to the price, the plamtifis, 
thinking they could get more than was of- 
fered by the defendant, at St. John's, 
brought them round and sold them to Ryan 
Sf Sons, at the stated price, payable one half 
immediately, and the other in the ensuing 
fall. The bills received on the delivery of 
the seals were endorsed by the plaintifis, 
and passed over to the defendant, by whom 
they were remitted to England and received. 
The plaintiffs continued to deal with the 
defendant, and took up supplies from him 
for tiiecod-Jishery, which they intended to 
carry on at the Labrador. It appears, upon 
reference to the account exhibited, that be- 
fore the sailing of the plaintiffs on their sum- 
mer voyage, they had taken up supplies to 
the amount of more than £200 ; and being 
80 in receipt, they drew an order on Ryan 
6f Sons for the balance of money due for the 
seals, in favour of the defendant. This 
order is unfortunately lost, and is said to 
have been destroyed by the fire of Novem- 
ber. It must, however, have been drawn 
heiore the thirteenth of June, as on, or about, 
that day, the plaintiffs sailed for the Labra- 
dor. . . 

The order was accepted by Ryan Sf Sons ; 
and on the 15th of October they drew a set 


February VWh, 

A supptyinp; 
merchant reci.-ivfs 
an order from hii 
dealers or partners 
in the fishery, up- 
VII a party who 
owea ihem money, 
and afterwards ac- 
cepts from the par- 
ty on whom such 
order was drawn, 
a bill of exchange 
upon England for 
the amount tbere-< 
of. The bdl is pro- 
tested, and tile 
drawer thereof be« 
conies bankrupt. 
Under these cir« 
cilmistances, the 
Court held, that 
the debt of the 
dealers was extin- 
guished by the 
iiieruliant's taking 
the bill upou Eng- 
land in satisfac- 
tion of the orde 
they had dcawb ia 
bis favour. 







re «^ned^;^,:ir'^/ ^'"'.^^^^ remitted; and 
PS action "^n ""^ ^^^« "«« to the 
rhere co»M ?• ^P''" ^^°^'*«' principles 

«« ;u \''?..""'"er of a bill, or order takps 
another b,I| from the drawee, it is consider 
f a ega satisfaction of such firs? bUI a^d 
completely discharges the drawer 'iTm 

preseni case. It certainly m g it so haoDen 
«,^L^ f^i' *'"'"*•' «« ■•««i»e bills from S 
STenr^W?"'!' "' ""« "'""' period o pay! 

against the person who gave the order to 
receive thera. Cases of this sort must de 

«i!t'H • .. "". ''»'''*'■ »f ">e order should 
fhf ;?in" ."'tP'»'=« »f ""8 drawer, and receive 
«he bills in his name, aad with the s^TZ 
J»«dy oyer, as if he had receved them from 
iitft" P"'y= »"«•> a case migh°haBD™" 

•M sprirtr*"*" """-f™' » ^oSa 

inat snc|i is the one now before mp Tul 
prder of the plaintiffs onV<»T^»; Jur, 
fortunately lost Was it a genml orderTo" 
receive so much in the usual way ? or was k 

fotteSf "■'''•'-"-• •'"'»«'- 

--.«„^Uca„u„ojeY,dence, which I ran 
P»ly gather from genml presimptJons , anS 


s Dansouy for 
I remitted, and 
e rise to the 
'ral principles 

in the case, 
p order, takes 
it is consider- 
first bill, and 
rawer. I am 
s island, the 

is by bills of 
And it is this 
J point in the 
ht so happei) 
e bills from 9 
;riod Qf pay- 
such particii- 
he bills being 
?ht be fairly 
ing sucb bad 

tp consider 

his demand 
he order to 
)rt must de- 
f the parties; 
ght be pre- 
1 of the par- 
rder should 
and receive 
lesame re- 

them from 
ht happen ; 
» me. The 
Sons is un- 
al order to 
? or was it 
bills given 

ich I can 
tions ; and 



presumptions are against the defendant. 
Such an order would have been particular; 
it would have been the subject of previous 
arrangement ; and some record, or notice, 
would have remained of it ; but none what- 
ever is to be found, except the party's own 
note in his books, which, of couise, cannot 
be received . Besides, the defendant's taking 
the bills in bis own name, causes a strong 
presumption against such preTious arrange- 
ment. 1 cannot possibly speculate upon 
what might have been the state of the case, 
had the r^aintiffs drawn in favour of other 

f»artieE i he bills might have been circu- 
ated ;^v ^ae island, and become the subject 
of set-off, on payment, or arrangement with 
the drawers, in many ways. Neither can I 
suppose that the defendant acted as the 
broker, or agent, of the plaintiffs, who were 
lai^ely his debtors at the time the order was 
drawn. It is true it was supplies ; but they 
might have exercised the discretion they had 
used before, and sold their fish to other 
parties, as they did their seals. As the 
case stands, the plaintiffs being indebted to 
the defendant, and giving him an order for 
a large sum, not equal, however, to the ex- 
isting debt^ and the defendant giving up 
such order, and taking bills in his own name 
from the drawee, unexplained by any positive 
agreement, 1 think 1 am bound to hold that 
the case is not taken out of the general prin- 
ciple, and that the plaintiffs have a right to 
consider this as aiMtym^nr. 


Cdstbbn & 




M : 




..W, ... ""'^'^^ ^ ''^'^^^ ^^--' •^ox.s IUrter. 
enables a. enant to Stances. foJIowing circum- 

■urrender a lease II f * j 

•Her the desfruc- . ^"endant is lessee of certain hnn^«c 
tion. by fire.onha destroyed by fire ; and the nlalnHff^K ^^ 
premise, which assignees of the reversion n.f^ff* ^^*'^""' 
tormed ihe princi- After thp fil/f i i ?" ^"^ freehold, 
pal .ubjec-Lner todefenH«n.?'^^*'"^^^^'^'P^»'°tiffs applied 
'HLdoesnoi ,„. I^J!, r* ^"^ ^^^ whether or not he in 

persedc .he nec.s- f^n^ed to Surrender; and def^Zlr^fl 
«"y of hi. „aki„s to have entered into somp !!!*/' ^PP^^''' 

•he surrender by the terms of wMoho ??^^'^*"^ ''^^^'^^^ 

call witnesses hntl ""^ P^posed to 
fn>m7„Sl:?j„t? If *>>« s""«te of fraud, 

from the aereem™. ^^! I ? "*'* '° '''"'«'>' 

parties di'^^rTo Z tmV"oft""^']''t 
was exnrpRslir ♦^ " . , ***^ '^ » and it 

and that at UdeTtC'/oo'r *"r7' 

■stltt, Jills tiaan-a ;<, _ ji • ""^ "^ 

usage is nothing more"th7n 

tacit proviso Zu^IJa T 'P^ "°''« ^^^an a 
proviso, annexed, by the custom of the 





iirt to enforce 
^'ing circum- 

Ttain houses 
ntiffs became 
ntiffs applied 
5r not he in- 
fant appears 
il agreement, 
by the par- 
tat it was an 
nt insisting 
he plaintiffs 
t in arrear. 
r the agree- 
proposed to 
ited by the 

« ff frauds 
on a verbal 
h surrender 
in which^ 
vritmg, the 
it; and it 
ss that the 
1 am of 
the forms 
nust be by. 
'2^ surren^ 

n case of 
irrender ; 

fnrjYjjD Qf 

B than a 
m of the ' 

place, to every lease, that if the house be 
consumed by fire, the tenant shall not be 
under the obligation of continuing to pay 
rent, but may give up the ground if he think 
fit. If he determine to yield up the ground » 
lie must communicate bis determination bi/ 
writing, and if he omit doing so within a 
reasonable time, especially after application 
to that effect by the landlord, he is to be 
considered as having waved bis election of 
abandoning, and the landlord will have a 
ri^.ht to 1 egard the lease as continuing. 1 
must, th elore, dismiss this application. 

HouRKE against Baine, Johnston & Co. 

JL HE great question raised in this case 
was, whether a supplying-merchant is con- 
clusively bound by a judgment obtained 
against a planter, who is a dealer of such 
merchant, by the servants of the planter. 

Per Curiam. The 15th of the King de- 
clares "all fish and oil made by the person 
who shall hire or employ the fishermen, 8u.b- 
j/ect, in the Jirst place, to the payment of 
wages, kc." 

It is important to notice tbat it is the fish 
made by the hirer, or, in other words, the 
produce of the master's fishery^ which is 
made liable to all the servants in common, 
without any difference, or preference, in the 
order of their claims. So long, therefore, sis 
the fish and oil remain in the hands of the 
hirer of the servants, they are liable to all 
demands for wages ; whether such demand 
be for services actually performed, or for 

luc Bs-ipuias-cu Tragus us a ocivaiii. Tftivr im^iiv 

have been improperly discharged before the 
period of service e3i;pire. 






March \tt. 

An the supply - 
inK merchaot is 
iiui immedfalely a 
party lo a suit for 
wages in ihe Sps- 
tions, tie is nntitled 
lo be heard apainst 
the rights ot ihe 
servants lo follow 
ihe fish and oil in 
his hands, under 
an execution is- 
sued upon a judg'* 
meot ill Iheir fa- 
vour against their 
employer. And if 
he can show any 
circumslaiice of 
fraud, or Ihe sup- 
pression of a ma-* 
terial fact, with the 
privily of the ser- 
vant, that will dis- 
charge him from 
all liability under 
Bucli juvlgniFDi. 


h'l ■ 


Bainb, John^ 

<TON & Co, 


.It is possible that the leffislatiire, by rna- one man s earnin-s liable for another's 
w^ges intended to give every servant a di- 
rect interest m the industry of his fellow- 
labourer; and thus to establish the most 
etJtctual guard against indolence. In the 
!!![!i r"*^ the hirer, all the fish and oil are 
Jiable for all the servants' wages ; but in the 
0^3 M. I. ^^®, supplying merchant, such fish 
and oil then become liable to other consider- 
a ions, upon which lawyers have entertained 
divided opinions, and upon which the ^«- 
preme Court differs both from the Court of 
^Sessions and the Croivn officers at home- 
the Qourt of Sessions holdi^^ the proceed; 
of the voyage Iia >Ie, into whose hands soever 
they might have passed; and the Crown law- 
yers limiting that liability to the actual pos^ 
sesnon of the hirer &r employer. ^ 

ihl^ ^f"'"' ^as expressed its opinion that 
the practice of following has been carried 
too far m this country (a), much beyond 
the probable intention of the British Parlia- 
ment. Composed, as it is, of lawgivers 
accustomed solely to the language and 

arCt^I'T*'"?''?" "*^^P*^^ by the Court^ 
aiWestrnmster, it is most probable that it 
had in view the English practice of liens in 
giving fishermen a specific right upon the 
produce of their labour in wlwfouSdland! 
■By the whole current of decisions and ooi- 
nions upon the extent of liens in England 
It IS established as law. that when theSff 
or subject-matter, upon which the lien sub! 
sisted, passes into the hands of a stranger 
il?s lost P^^'y^^^^^^^^J-^^I^ consideration; 

iJuJ^i!^^ ?!??"' therefore, that thelegis^ 
»ac«re intended to trivp « !,«« *l «. , 

(«) la Dooh, f. Hacheit, dMidedllth D.Miiib.r, mtf. 

■■'"*'*<«.. ■■„ 




itiire, by iria- 
for another's 
servant a di- 
f his fellow- 
ih the most 
ice. In the 
1 and oil are 
; but in the 
^U such fish 
ich the Su^ 
he Court of 
s at home: 
le proceeds 
xoT^ds soever 
Crown law- 

pinion that 
sen carried 
ch beyond 
ish Parlia- 
:«age and 
the Courts 
^ble that it 
>f liens, in 
upon the 
and opi'< 
the thing, 
lien sub- 

the lejsrtS' 
me Qsfa 

tfber, iflljr. 


snd oil in the hands of the hirer only; but 
the custom of the fishery has extended it be- 
yond such hirer, s^nd created an iipplied 
lien in the hands of the receiver. 

The origin of this cuHtom is to be found in 
the necessity of the thing ; and the interests 
of the fishery are its best expositor. From 
the nature of the article of fish, and the me- 
thod of curing and sending it to market, it 
is the common practice of this island to take 
it off the rooms at different times; and a 
considerable portion of the catch is always 
removed before the close of the season, and 
before the time of ti»e wages becoming due, 
Jf the servant is to lose his lien by the remo- 
val of the fish, he must arrest it upon the 
rooms ; the ruinous consequences of which 
proceeding require no comment. The ne- 
cessity of the thing has, therefore, given rise 
to a general understanding that the fish may 
be removed from the planters rooms to the 
warehouse of the regular supplier^ without 
any detriment to the right of the servants, 
whoare presumecl to know, and to be known, 
to the supplier, as to their number, occupa- 
tion, and amount of wages, &c. 

If there is any frauds or collusion, or sup* 
pression of circumstances, with reference to 
the supplier, the lien is lost, it wants its 
most essential ingredient, — the presumed un- 
derstanding between the parties, and the 
tacit contract of the supplier to be account- 
able for the wages of the servants to the 
amount of the fish and oil he may receive. 
Subject to such considerations, 1 conceive 
the servant has a clear right to follow the 
fish and oil into the hands of the supplier, 
and that his lien is as strong in the merchant's 

It is necessary in all cases that the de- 
mand for wages should be established 



Bainb, John^ 

STON & Ctf. 



1 1 




Bainf, John- 
ston & Co. 


against the actual hirer ; and in followhij? 
up execution, it is possiblf* the planter may 
have effects sufficient to satisfy the judg- 
ment, without recurring to the fish and oil ; 
but the legislature, 1 think, intended to give 
the servant not only a summary proceeding, 
but a summarj satisfaction. The supplier 
has his remedy over against the planter, if 
he choose to enforce it ; and he has, also, 
the means of indulgence, and of giving time 
for retrieving a bad year by a better ; which, 
in so precarious a thing* as a fishery, and 
with reference to the many small adventurers 
now engaged in it, it is of importance to the 
genet-al interests of the fisheries to preserve. 
As the merchant or supplier is noi imme^ 
diatelif a party to the cause for wages in the 
Sessions, he has a right to be heard against 
the fish and oil being followed in his hands ; 
and if he can show any circumstances that 
take his case out of the presumptive liability^ 
he is undoubtedly entitled to the benefit of 
thetn. The mere judgment against the mas- 
ter will not necessarily bind him ; and any 
circumstance of fraud, ot the suppression of a 
iTiaterial fact, with the privity of the servant, 
will completely dischargi the supplier. 

March 12th. 

The whole of 
the«ea«coa«tof thin 
island is dedicated 
to iheyfsAery, 
by Ihe 10 and 11 
William III. c. 
25 ; and,lherefore, 

iliA fl £\MTgnfiint\m Man. 

not grant any part 

Martha Rowe, administratrix, against the 
Heirs of Thomas Street. 

CTJON to recover possession of a fish- 
ing-room at Trinity ; and also to recover the 
sum of £50, being for five years' rent, at £10 
per annum, from the year 1813 to 1817. 
Per Curiam. This case is very defective 

\Ji. ^7£UU1X%-C* Jib 1!7 OtCtlVVS (.XlCib l.UC;ialC ^ HUSfm 

Streets deceased, obtained a grant of the 
fishing-room ia question for James Rowe, 





n followlnjy 
ilanter may 

the jutlg- 
ih and oil ; 
(Jed to give 
he supplier 
J planter, if 

has, also, 
giving time 
er; which, 
ishery, and 
id venturers 
ance to the 
o preserve. 

noi immC' 
iges in the 
\rd against 
his hands; 
dances that 
e liability, 
e benefit of 
st the mas- 
; and any 
'ession of' a 
he servant, 

igainst the 

a of a fish- 
•ecover the 
ent, atiilO 
f defective 

I ale ^ nus, 

int of the 
nes Rouie, 

who,/»in consideration of this service, allow- 
ed him to retain the use of the room during 
his life. All this is very unlikely, insomuch 
that ] should have suspected there were 
other causes for this arrangement if they had 
not partly been stated and admitted at the 

It now turns out that Eowe, becoming in- 
volved with his creditors in England, by 
way of securing his plantation from beii^ 
taken in satisfaction of his debts, obtained a 
grant through the intercession of Street. 
As against the creditors, this grant was void, 
because it has been repeatedly held that the 
governor cannot grant any part of the island 
adapted to the fishery. The whole of the 
sea-coast is already granted away by the sta- 
tute of William. As between tbej^ar/tw, 
however, to th6 arrangement, I must take as 
my guide the intentions which probably go- 
verned them. ■ 

It is stated by Adams, in an affidavit 
taken de bene esse, that he received a letter 
from Street, for whom he acted as agent in 
this island, in the year 1805* in which he 
acknowledged that he held the plantation 
in question by permission from Rowe, during 
such time as he thought fit to use it. This 
is corroborated by the fact that the property 
has actually since been given up (subject to 
a subsisting lease) to Howe's representatives. 
On the one hand, this is considered as a 
voluntary act, proceeding, ex mere motu, of 
Street's widow ; while, on the other, it is 
regarded as an admission of the right of 
Howe's representatives. With the latter view 
of the case, under all circumstances, 1 agree ; 
and, therefore, I hold them entitled to the 

atives, together with the reversionary interest 
iQ the lease itself. Beyond this, however, 



TIm lleirw*(T. 

1 « 




The Heirs of T. 



I cannot go. — The property was leased to 
Machraire, and underleased by him, after a 
length of possef^sion, and witli every appear- 
ance of right, sufficient to warr mt a title in 
the lessor. If the Rowes have fallen asleep 
over their better claim, it is their fault, and 
should not prejudice innocent parties. 




March 20/A. 

An ot'der of 
Court, founded 
upon the reveraal 
by the King in 
CouDcil of the 
decree of the Su- 
preme Coart,in the 
matter of Craw^ 
ford if Com. iasol- 
▼ency. [Ante. p. 
100 ; and note,tbat 
the judgment of 
the Chief Justice 
was reversed, 
merely because 
the proceedings io 
the Surrogate 
Court, preparatory 
to the declaration 
of the insolvency, 
ivere irregular in a 
material point. It 
by no means fol- 
lows, therefore, 
from this refusal, 
that Mr. Forbea'a 
▼lews upon the 
points brought ini' 
mediately under 
his consideration 
are not correct.] 

la the matter of Crawfobd $c Co*s. Insol- 


N this day, David TasJcer, for himself 
and "partners, under the firm of Hunters ^ 
Co., and John Boyd, for himself and part- 
ners, under the firm ofJBaine, Johnston^ Co 
appeared in Court, and prayed that the 
judgment which they, together with James 
Stewart, for himself and piartners, under the 
firin of Stuarts ^ Rennie, suffered to go 
against them in favour of our Sovereign 
Lord the King, on the22d day of Decem- 
ber, i818, for the sum of twelve thousand 
four hundred and thirty-nine pounds, eleven 
shillings and threep^ice sterling, being the 
amount acknowledged to beheld by them lof 
the monies belonging to the late esjtate of 
Crawfords Sf Co., might be set aside and can- 

It was ordered by the Court, that as the 
whole of the proceedings under the insol- 
vency in this island was annulled and re- 
versed by the decree of his Majesty in Coun^ 
cil in appeal from the decision of this 
Court, wherein William Bennett and others, 
creditors of John Crawford Sf Co., of Great 
Britain, were appellants, and the trustees to 
the insolvent estate of Oratvford Sr C^, is^ 
this island, were respM>Qdent8, the judgment 
against V»vid Ttuhr, WilUam Johnston, 

•; .. 




leased to 
im, after a 
ry appear- 
it a title ill 
lien asleep 
Tault, and 

!u's. Inaol- 

for himself 
Hunters ^ 
fand part- 
nslondf Co 
that the 
rith James 
under the 
red to go 
of Decern^ 
! thousand 
,ds, eleven 
, being the 
}y them lof 
e esitate of 
jg and can- 

lat as the 
the insol- 
ed and re- 
y in Counp 
a of this 
nd others, 
, of Great 
rustees to 
1 &" Cq. in 


ntid James Stewart, and their respective 
partners in trade aforesaid, be cancelled and 
set aside. 


• .5 

John Delany against Nuttall, Cawley 

& Co. 

^A.CTION to recover the value of the 
schooner iH/aria, detained from the plaintiff 
by the defendants. 

Per Curiam. It appears by the testimony 
of all parties, that the schooner Maria was 
built under the direction, and ;vith the per- 
sonal assistance, of the plaintiff ; that the 
advances necessary for building were sup... 
p)i?dbythe defendants; that the schooner, 
when built, was carried to Harbour Grace, 
and there registered in the name of the de- 
fendants ; that she was one voyage under 
direction of the plaintiff, who was master, 
and made an unsuccessful trip to Labrador ; 
tliat, in virtue of the certificate of registry, 
the defendants obtained possession of the 
Maria at her return, and still retain her. It 
also appears that a custom prevails in this 
country of advancing supplies to dealers to 
enable them to bnild vessels ; that the ves- 
sels so built are held as securities, to be re- 
assigned upon payment of the supplies ; and 
that a reasonable time is allowed to the 
debtor to work out the debt and^ cledr the 

Now it appears that, whatever may hate' 
been the right of the plaintiff to the vessel 
as the builder, defactOy in the first instance, 
he had assigned the possession to the de- 
fendants bv whom it was reostert^d in the!!* 
own names ;< and, I mast presume, with the' 
privity and qonsdut of the plaintiff, beca^i^e 

Junt \2ih. 

It 11 usual in 
Ihii Couutry for 
two persons to 
agree that the one 
shall build a vessel 
and the other fur- 
nish ihe capital to 
enable him to do 
it; and that the 
vessel, when built, 
shall be registered 
in Ihe name of the 
parly who fiiroish- 
(>d the materials. 
Ill these cases the 
registered owner 
holds the vessel tn 
truft, tirst as a se« 
curily for the pay- 
ment of the money 
advanced by bim ; 
and afterwaids for 
the benefit of th« 





LBY Ol Cu. 


lie afterwards navigated her as master under 
«nch register. It is probable that they bold 
he vessel ,n first, as a security lor 
he.r mvn debt and afterxvards for the plain- 
t ft. But this does not clearly appear and 
81.11 less can I sakly conjecture how lonj? 
the defendants were bound to allow the 
plaintitf the use of the vessel to enable him 
lo Clear It. I cannot suppone any time, be- 
cause I have no data to fix it. But 1 will 
fr.l "^r / ?^^«""t« o^ t»'e parties, with the 

fc nAr^* i^"'^ ^''^"^*^ ^^ '*^«« than the 
IrLh? / ^*''''*'''T' ^''^ plaintiff- will have 
a right to demand of ihe defendants the 
difference or by paying the money due them, 
to demand the vessel itself 

' i ! 



June \9lk 

Th« proper(y in 
>D article may b« 
coapUuly tram- 
fcrred to iha Van. 
<*••, et aa whilat it 
r*aaii)a in the 
store* of tli« vea^ 

Trustees of Cullen & Co. against Trustees 
ot Miller, Fergus & Co. 

Wy S."''"'' ''^ "'''' «^ ^ -••^-" 
Per Curiam The sale of salt was com- 
plete ; and Miller, Fergus ^ Co. had done 
everytlimg to complete the delivery on their 
part. J he only circumstance which can 
raise a momenfs doubt in the case is that 
the salt remained in ihe stores of Miller 
Fergus Sf Co. But it is provided by he 
agreement that the salt was to remain in their 

C^lltir K *^^"''^^' ""'•* convenient for 
i^Um 4- Co. to receive it. After this the 

M^lt 18 measured out, the quantities deter- 

mined rcwi;)/, given for such quantities to 

the vendors, who charge Cullen ^ Co. with 

the full amount, and give them up the key 

of the store m which the salt is deposited^ 

-i iie aeiivery oi the key, i think, was suffi- 




aster under 
t they lioia 
fieurity for 
)})ear; and 
liow long 
allow the 
nable him 
' time, be- 
But 1 will 
s, with the 
from the 
s than the 
fwill have 
idants the 
due them, 





a certain 

ivas com- 
!)ad done 
^ on their 
hich can 
i is, that 
■ Miller, 
by the 
n in their 
nient for 
' this the 
8 deter- 
itities to 
Co. with 
the key 
as suffi* 

cient to conclude the case if there had been 1820. 

any doubt as to the terms ♦•convenient to - ■- . -^ * 
receive it." The measuring the quantities, Trntte.s nf cul- 
and passmj? receipts, were, in fact, sufficient »•''« & Co. 
to satisfy those words. I, therefore, shall t, . "", «. 
hold that Cullen 6r Co. had not only the '"]Tvfn^,l'" 
property, but the corporal possession of the k Co. 

salt, at the time of th^w ;>^olvency, and, 
consequently, that it pisses to heirtrnstees. 
Ihe mere circumstance f the > ifent o( Mil- 
ler, Fergus, Sr Co. pJh^^n^ t' ? key after- 
wards, cannot alter the c; t, unless it could 
be shown that the salt was re-delivered 
them, as a guarantee for the balance due on it. 
Jt is not necessary to go into the accounts 
to determme the fact of the salt being paid 
for. it was to be paid in account, and an 
acceptance at 12 months for any balance 
that might remain. There was a running 
account between the parties, and the ba- 
lance was not struck at the time of this 
transaction; and it was necessary that 
Miller, Fergus 6f Co. shr.uld draw the bill 
for such balance, as a preliminary step to its 

JLN the matter of John Cook's Insolvency, 
the followmg question was submitted to the 
consideration of the L /tie/ Justice:— - 

The trustees to the estate of John Cooke, 
msolvent, wish to be informed, if a bill 
drawn by John Cooke on Ann Cooke for 
£\l I6s. Od., part .of it for a servant's pas- 
sage, and part for John Cooke's p&ssase 
should rank with servants' wages ; the ser- 
vant, William Jago, being shipped for a sum 
certara and his passage ; to which his Ho- 

SliMIM n>r>w.^ 4U.^ 

The Court has never considered j>«*5ag-«. 

Jnfy 24/*. 

can only rank aa 
wages on an iiisol- 
ven« PBtate, where 
>( baa etpressjy 
been agreed that 
it should be paid 
as pait of ihe hir« 
of tlie servant. 



fn ibe matter of 

John Cook's 



mon^ in the light of wages, except, where 
in fact, it formed a part of the consideration 
for services, aiid was expressly agreed to be 
paid for hire. For example : if A ships B, a 
servant, and is to give him so much, part to he 
paid to himself and part to be paid to a third 
person for his passage, as wages, payment of 
which wages is usually by bills of exchange; if 
the bills turn out to be bad, they are consi- 
dered 38 a nullity, and the demand subsists 
in full force, as a demand for wages, entitled 
to a preference over all others in the settle- 
ment of an insolvent estate. Beyond this, 
1 know of no preference for passage-money. 

Octoher \2th. 

Siipplira igoufxl 

for the fishery are 

advanced oil the 

crptiit ftf llie |»ro- 

dure «(f the voy 

Bue ; pn I, Uifro- 

iorc, if the pin- 

ceeds of thn vov- 

asf, iiiRifad of 

h<'io«; sppllpd to 

the pavni^'nt ot 

ihiise 8<i|)|)|i<>8, are 

(livfded to another 

object, the planter 

nay be aiied im. 

mediately (or Ibe 


Hunters & Co. against Archibald 

CTION to recover £3,000 being for 
goods sold and delivered as supplies for the 
fishery. , 

Defendant appeared in Court, and admit- 
ted the amount of goods advanced, btit de- 
nied that the account was payable until the 
usual period (31st October.) * 

In explanation of the large apparent ba- 
lance of account, defendant stated that he 
had already shipped a cargo of 1600 qtls. 
fish for Oporto, and had another in readiness 
to ship, the proceeds of both of which were 
intended to be forwarded to plaintifis' house 
in Scotland, and applied in payment of their 

Plaintiffs contend that the supplies were 
issued m the course of the fishery, payable 
in fish and oil. 

Ji:'i:r Curiam^ It appears that the platn^ 
tiffs and defendant have had large dealings 
togetbev foe several years past ; and that, in 



the course of those dealings, fish, oil, and 
INewfoimdland produce, have always been 
applied in payment for supplies in the usual 
way of the fishery, in this year, however, 
the defendant has shipped tlie usual returns 
to foreign markets, without the consent, an4 
beyond the control, of the plaintiffs ; ai? I 
the question is, whether, un-dersijcU circum- 
stances, he can set up the practice of the 
fishery as to the time of payme^it, in bar tp 
thfi present action? 1 am of opinion he 
cannot. Wherevei- goods are delivered, lay- 
.ment becomes due immediately, unless thp 
contrary be expressed, or irapUed, by the 
usage of the place or the understanding of 
the parties. By the usage of the fishery, when 
supplies are advanced for catching fish, the 
fish and oil, when caught, are received in 
payment ; they constitute the sijipplier's 
security for payment of his debt ; and if he 
finds them travelling out of his hands, h^ 
lias a right, in most cases, to arrest them, 
and, in all, to consider the deviation from 
the established usage as turning the credit 
into a present debt, and to recover his 
judgment immediately. 

Whoever wishes to avail himself of 
the usage of the fishery must conform 
himself to such usage. Jt appears to 
me that, in this ease, I'iupplies for the fishery 
^ere issued, payable in fish, at the usual 
times ; and the defendant having disposed of 
his fish and oil, and put it out of his power 
to tender thenj in paymenf , has become lia- 
ble to the plaiatiffs as for a present debt. 


Hunters & Co. 




Oclol>er 19th. 

^ he judgment of 
a Court of concuro 
'ens jurisdictioa is 
a bar to an action 
between the same 
parties upon the 
fiame subjecLmat- 
ler, however erro- 
neous such jiidg* 
inent may have 
been : but where 
a new action is 
brouaht, includin? 
tome matter which 
had been adjudged 
on the former trial, 
and some which 
had not, and the 
jury assess the 
damnges 8e|iarate- 
hf 'he Court will 
give judgment for 
that part which 
^''as not decided in 
the first action. 


Jennings & Long against Hunt & Beard, 

Summary proceedinfTs under 49thGeo. 

don.?I T*''i^'.^"^^ n,. Gd. damages 
done t^e piamtiffs in their fishery at Lab;.a- 

betL ^K*'^" ^''^^^y ^^^'"^ ^"d adjudged 
CouTat l!'aLaTr. '''''' '' ''^ «™^ 
spvTIT!*^"* " 'P'''''*'^ j^ry impannelled, and 
ChJ? 7'??^««^f «^«'nined. after which, the 
^^^.^hat^ed the jnry to the ibJ- 

That the case before the Court comprised 
mixed issues of law and fact, and mainly 

case was important, and appealable, it 

^nrJf T "P"*" ^^^ ^^^^^'-d '" a specia 

be ;r,ir:f'r*''^ ^^^ ^"P^"«»" Courtmight 
be enabled to review the whole case with 
exactness, and apply a suitable judgment 
m the event of its reversing any opinion 

Ttt th " \'Tr^'^ ^"^^^ '-" «' ^^'"-- 

ildt the facts for the consideration o*" the 
Jury were whether the defendants, o their 

acjro;* n' '\''' ^••^^^^' ^'^ commit the 
acts of alleged trespass in removing and 
detaining the plaintiffs' nets? and supposing 

;r/^ ^.'l^ ^^"" '^^^ ^'^«t damages had 
tie plaintiffs sustained, both in the'imme- 
diate loss of their nets, and consequent 

t m??K '"i *r'"; ^'^'''^ • ^*»^* length of 
time the defendants, or those who held 
before them had possession of the rivers in 
Sandwich Bay, and to what extent such 
possession had been ?-which of the par- 
ties had. in fact, the first occupancy of 

thi. U;r„ur •'" ""i'«'^' iast season ^ And 
this might mvolve a question of what ex- 


T & Beard, 

er 49th Geo. 
•«?. damages 
y at Labra- 
nd that the 
d adjudged 
e Surrogate 

celled, and 
which, the 
to the foF- 

id mainly 
id, as the 
salable, it 
the facts, 
a Sj>ecial 
ourt might 
case with 
Y opinion 
f the law. 
ion r'the 
, o their 
>mmit the 
»ving and 
ages had 
e imme- 
ength of 
ho held 
rivers in 
jnt such 
the par- 
ancy of 
' And 
'hat ex- 




4itNNINGS & 


tent of ground was necessary to the proper 
cusfomary use of such phicea for a sal- 
mon fishery ? Whether the several instru- 
ments before the Court were proved as laid 
m evidence? and to what parts of the case Hdkx&Vaud 
the former judgment applied ? The Jury 
then retired, and returned the followin'r 
verdict:-" The Jury find the nets in this 
case were taken up by Mr. Beard, ^nd per- 
sons under his direction, and not by JVJr 
Wakeham; that Mr. Beard had no corpoi 
real possession at Burn's Cove, but that he 
had a net, with some materials and utensils 
there apparently for the purpose of carrying- 
on the salmon fishery, previously to the 
arrival of the plaintiffs, and that plaintiffs 
had possession at Cooper's Cove. 

''Damages estimated as sustained by plain- 
tifls, VIZ. : — . 

" At Bum's Cove, 14nets, with cord- 

age, buoys, &c. and 106 salmon £40 
"Cooper's Cove.— 25 nets, with 

^^ cordage, buoys, &c 70 

*• Loss of salmon voyage, deducting 

uf^^^^'r-r ...250 

l^oss of subsequent voyage .... lOO 

* The jury find that the defendants, or their 
predecessors, had possession, and an esta- 
blishment for a salmon fishery at Eagle and 
other rivers in Sandwich Bay for forty-eio^ht 
years ; but there is no proof in evidence^'of 
the extent of coast used by this establish- 
ment, or of any exclusive possession out of 
the rivers. 

*u " Jy^^ ^"^ ^^® documents produced from 
the GoverPiaent-office to be proved. They 
also find the proceedings before the SurrL 
gaie. Captain Robinson, at Sandwich Bay 
to be proved as laid in evidence. Thev 

2k ' 



1820. leave all questions of law to the considera- 

S^^'^^^^^^ tion of the Court ; and if, &c." 
JENmN08& Cur. adv. vuU. 

V. • , 

Hunt & Bbard. ~— 

October JO/A. On this day the Chief Justice delivered 

the following judgment: — 

The defendants, Philip Beard ^ Co. are 
engaged in an extensive salmon fishery at 
Sandwich Bay, on the Labrador, where they 
have a fixed establishment. 

The plaintifis, Jennings 4' Long, are Bri- 
tish subjects, and reside at Halifax, in the 
province of Nova Scotia, from which place 
they have, for a few years past, resorted to 
Sandwich Bay, for the purpose of a salmon 
fishery likewise. In the pursuit of their 
common occupation, the parties appear to 
have been brought into contact upon dispu- 
ted points of right ; the defendants claiming 
exclusive property in all the rivers in Sand- 
wich Bay, as well as the circumjacent coast, 
within three miles of the mouths of the 
rivers ; and the plaintiffs contending for the 
right to place their nets in any vacant spot 
not actuaUy indispensable to the others' 
fishery. While the parties were in difference, 
the Surrogate, Captain Robinson, of His 
Majesty's Ship Favorite, arrived at the La- 
brador, and the defendants. Beard & Co., 
immediately brought their case before him, 
alleging their rights, and complaining of the 
trespass which had been comunitted by Jen- 
nings. The Surr6gate caused the parties 
to be summoned before him on the 11th of 
July last, and after a hearing, ordered Jen- 
nings to make certain reparation to Beard 

& Co., and remove his nets by one o'clock 
^K I'll' I -■ ...•'. 


<■!».. . »..J 

...•*l- ; 

;g iiaj ; aiiu, Willi u ViCW OI Car- 

rying this sentence into effect, he issued pro 


;. vult. 

e delivered 

f ^ Co. are 
1 fishery at 
where they 

ig, are Bri- 
t'ax, in the 
k^hich place 
resorted to 
9f a salmon 
lit of their 
} appear to 
ipon dispu'' 
its claiming 
rs in Sand- 
icent coast, 
ths of the 
ling for the 
acant spot 
the others' 

on, of His 
at the La- 
^ard & Co., 
before him, 
ning of the 
edby Jen- 

the parties 
the 11th of 
dered Jen- 
a to Beard 
»ne o'clock 
icw of Cur- 
issued pro- 


cess of execution, and directed it to one 
Wakeham. From some unexplained cause, 
Wakehnm did not e::;:ecute the process Ijim- 
self, but the plaintiffs' nets were actually 
taken up by Beard, or his servants, and car- 
ried to defendants' settlement on Eagle 
River. The plaintiffs, feeling themselves 
aggrieved by the removal of their nets, and 
the consequent loss of their fishery, came to 
St. John's, and sought their remedy by the 
present action. The case has been put to a 
special jury, under the direction of the 
Court, And they have returned a rtrdict for 
the plaintiffs, assessing the damages at £460, 
but subject to the opinion of the Court upon 
the facts which are specially set out in the 
Terdict. The whole case turns upon the 
defence : it is for the defendants to justify 
the facts of which the plaintiffs complain, 
and to show that, by law, they are not liable 
to the consequences. There are several 
pleas to the action, but the principal defence 
is, that the mdtter at issue has been already 
heard and adjudged by the Su«"">Qjate at 
Labrador; and, certainly, if it can be made 
out that the points at issue between the 
parties have been already determined by a 
competent jurisdiction, it is not for this 
Court collaterally to call it in question, how- 
ever croneous such determination may be. 
It is clear law, that the judgment of a Court 
of concurrent jurisdiction, directly upon the 
point, is conclusive as evidence between tLe 
same parties upon the same matter directly 
in question in another Court, until such 
judgment be reversed by a Superior Court. 
But was there, in fact, a judgment ? — was 
there that conclusion from the law and facts 
of the case, which is presumed to be formed 
in the unprejudiced bosom of the judge, and 
is the essence of a judgment ? It is contend- 



Jennings & 



Hunt Si Bbabd. 







ed by the plaintiffs, that there was no sach 
judgment; that it appears ujion tlii face of 
the buiTogates own procetiuings, that he 
V. ijad received the orders of his Comraander- 

«UNf & Beahd. Jn-chief, which he merely obeved as a sub- 
ordinate oflicer, ^vhSioutqueslior^ as to their 
legal authority, or cxerrising ^ny opinion of 
ms own upon tlie m( rits of the case. Jf tliis 
be the fact, then there h^s l>f eu no jutlginant 
and the defendants cannot be prof^cted unl 
dor it. 

la Looking into the proceedings which 

iook place before the Surrogate at Labra- 

dor, It does appear that he had received 

certain rules and regulations, in the form of 

a proclamation, expressly r.pplyi„g to the 

case before him and that hi. decision was 

lounded upon those regulations ; but then it 

II "f f.'^l'" explanation of this circumstance, 

that the Governor's proclamation necessarily 

iorraed part of the Surrogate's proceedings, 

?n'!!i7f^'"'^^*''* '**^ ^"'^ "P^'* which he 
founded his judgment. In support of which 
position, a bundle of orders and other acts 
pt the local government has been handed 
luto Court, containing a series of regula- 
tions and observances for the trade and fish- 
mes of this island, and variously affectinff 
the persons and property of its inhabitants! 
from which 1 am to infer that a legislative 
authority in this government, unknown to 
the laws of England, but claimed under a 
prescriptive exercise in Newfoundland, is 
now for the first time, soug .♦ to be esta- 
blished m this Court. So larg,. d, indeed, 
so dangerous, an innovation t. .n the accusi 
^tomM pnnciples of aoJ* ^tion in the 
^ t, ought not to be ^^ded over unob- 
served. ^ If the proclamatiG i by which the 
parrogaie IS stated io have i; i^ ?-overned 
be legal, then, indeed, there cao .e^no doubt 

as no «ach 
th"i faoe of 
gs, that he 
id as a sub- 
1 as to their 
opinion of 
se. JltJns 
)5 jcted un- 

ngs which 
at La bra- 
id received 
he form of 
'ing to the 
cision was 
but then it 
which he 
t of which 
)ther acts 
m handed 
3f regula- 
3 and fish- 
labitants ; 
cnown to 
i under a 
dland, is 
► be esta- 
I, indeed, 
i in the 
er unob- 
hich the 
10 doubt 


that it is as binding on this Court as it was 
on the Surrogate Court ; and that it will be 
equally binding on the King in Council, 
should the case go to an appeal. There is 
no dispensing power in Courts, and that 
which was the law of the case at Labrador, 
will be the law sn London. I om bound, 
therefore, to apply to it the same considera- 
tions which, 1 think, would be applied by 
the Lords of Appeal. Jt is a determined 
principle of law, that the King holds a legis- 
lative power over conquered or ceded coun- 
tries, bnt that no such power is held over 
countries originally settled by British sub- 
jects. This Island and the Labrador were 
first discovered by the English, and peopled 
by emigrants from the United Kingdom. 
But the application of the principle tloea 
not rest upon a question of geography, it is 
expressly declared by the statute 49th Geo. 
IlL, chap. 27, that the Courts in Newfound- 
land shall be governed by the laws of Eng- 
land, so far as they may be applicable ; and 
the same course of administering justice, is, 
by the statute 61 Geo. IJL, chap. 45, ex-' 
tended to the Labrador. These statutes are 
affirmative of what was before the com- 
mon law of all the English colonies ; over 
which it has been solemnly recognized in the 
celebrated West Indian case of Campbell v. 
Hall (a), that his Majesty holds no legisla- 
tive authority. The King has, indf ed, large 
prerogatives; but the prerogatives of the 
Crown are defined by the constitution, and 
form a part of the law of the land. It will 
not be contended that there is a prerogative 
peculiar to Newfoundland ; and if there be 
not, then a proclamation for regulating the 
trade and fisheries of this island and its de- 

(a; Cowp. Bep. 804.; 

■ 253 



Hunt & Bbard. 




Jennings <% 


% f , 

pendencies, must rest upon the same foun- 
dation as a proclamation for governing the 
trade and fisheries of Great Britain. " Pro- 
clamations," says Blackstone (b), " are bind- 
HuNT & Bbard. ''?S "Pon the subject, where they do not 
either contradict the old Jaws, or tend to 
establish new ones, but only enforce the 
execution of such laws as are already in 
being, in such manner as the King shall 
judge necessary." And 1 am not conscious 
of having seen any Act of State, in modern 
times, which has not been perfectly in uni- 
son with this first principle of the constitu- 
tion. It is a mere sophism to distinguish 
between regulations and laws. Everything 
which prohibits thai which was not prohibit- 
ed before, is a law. But to bring this matter 
at once to the test, let us look at the code 
of regulations for the fishery and trade on 
the coast of Labrador. The first article de- 
clares "that no inhabitant from Newfound- 
land, nor any person from any of the 
colonies, shall, on any pretence whatever, 
go to the coast of Labrador ; and if any such 
are found there, they shall be corporally 
punished for the first oflTence ; and the se- 
cond time, their boats shall be seized for the 
public use of British ship-fishers upon that 
coast." A regulation which debars a million 
of his Majesty's subjects from the exercise 
of a conimon right, submits their persons to 
Ignominious punishment, and their property 
to forfeiture, may well be called a law ; and 
if it be, however penal its provisions, I am 
bound to enforce them. Now it is well 
known that the principal fisheries at Labra- 
dor are actually carried on by people from 
this island ; and 1 have purposely put this 
case, because I wish it to be cleariv seen to 


{h) Vol. 1. p. 270. 


same foun- 
'eming the 
in. " Pro- 
*' are bind- 
jy do not 
or tend to 
snforce the 
already in 
Ung shall 
in modern 
tly in uni- 
i constitu- 
t prohibit- 
his matter 
I the code 
I trade on 
irticle de- 

Y of the 
' any such 
id the se- 
ed for the 
jpon that 
I a million 

ersons to 
aw; and 
ns, I am 
it is well 
It l.abra- 
>ple from 
' put this 

V seen to 




Jennings & 


what extravagant consequences the principle 
contended for must lead. The public in- 
strument more immediately connected with 
the proceedings before the Court is, indeed, 
of a very different character ; and 1 am Hunt & Bkard. 
aware that it was framed with the benevo- 
lent view of quieting the differences which 
had arisen at Sandwich Bay. But I appre- 
hend that the claims of individuals to the 
right of fishing in the seas and rivers of that 
bay could not lawfully be aflected by the re- 
gulations of the Government, llissaidby 
Lord Hale (c) "that the right of fishing in 
the sea, and the arms and creeks thereof, is 
originally lodged in the crown; but, al- 
though the King is the owner, and, as a con- 
seauence of his propriety, hath the primary 
right of fishing in the sea, or creeks, or arms 
thereof; yet, all the King's subjects have 
regularly a liberty of fishing in the sea, and 
the creeks and arms thereof, as a public 
common of piscary, and may noty without in- 
jury to their right, be restrained of it, unless 
in such places, creeks, or navigable rivers, 
where the King, or some particular subject, 
hath gained a propriety exclusive of that 
common liberty, either by the King's char- 
ter or grant, or by custom and usage, or 
pescription." This doctrine is recognized 
in several adjudged cases; and it was held 
in a modern case (d), that where one party 
claimed a fishery in an arm of the sea, in 
exclusion of others, it was incumbent on 
him to prove such exclusive right, as the 
presumption was in favour of the public 
Therefoivn whether any exclusive right of 
fishing :;>uld be claimed in the rivers and. 
seas of Sandwich Bay, and, admitting it 
could, how far the boundaries of such exclu- 

(c) H'irirare'i Tract*, toI. 1, 

(d) 4 iianotres, 2102. ' - 

p. 11. 




Jknnings iSc 



1 V ■■■. 

faii^t ciaira might extend, were questions of 
private right, depending on proofs, upon 
which the parties interested were clearly 
entitled to appeal to the law, and take the 
UuNT&BsABD. juf'gment of r. f ' V rent Court. The 51st 
Geo. 111., empowers the Surrogate to hear 
such <]|uestions, and directs him to decide 
accordmg to the laws of England. If such 
laws are insuflicient, 1 apprehend the pro- 
per remedy is an application to Parliament. 

Laying every thing out of the view of the 
Court but the judgment of the Surrogate, 
and applying it to the case before us, we must 
recur to the questions. Was there a Court? 
Did it pronounce a judgment? It is unne- 
cessjlry to ref eat what is so well understood, 
that if it is possible to come at tiie - rjstunce 
of the proceedings, this Court is altogether 
regardless of the form. The proceedings 
set forth the opening of the Court, the at- 
tendance of the parties and their witnesses, 
the statements of their several cases, and 
the ser:tenoe of the Surrogate. The true 
issue before hi n was, i apprehend, whether 
•n ex'^'iusive ^ht of f]->hery in the contested 
places could be maintained? and it was ir 
the party setting up such right to have 
l^'o .^d it. 

The Surrogate, however, appears to have 
considered this point as settled by the pro- 
clamation ; and he ordered the nets of Jen- 
nings to b ■*?m^ ed, according to the lin its 
therein pif ril 1. 

All tha cau He said is, tlr^t he mistook 
that for law which was not la , and so far 
that his judgment was erroneous , but still 
it is a judgment, in form at least, and can- 
not be questioned in a collateral way. Jia 
lex scripta est, 

I am bound to hold that the judgment at 
Labrador, so far as relates to the removing 





Li^stions of 
)ufs, upon 
re clearly 
1 take the 

The 61st 
ite to hear 
, to decide 
if such 
[ the pro- 
iew of the 
s, we must 
e a Court? 
it in unne- 
- ii'jstance 
t, the at- 
cases, and 
The true 
, whether 
it was ' ir 

to have 

19 to have 

ly the pro- 

; Js of Jen- 

ihe limits 

e mistook 
and so far 
; but still 
, and can- 
Bray. Jta 

dgment at 

of the nets, and the consequent losses of the 
plaiutilfs in their fishery, is a bar to the pre- 
sent action. In giving this opinion, how- 
ever, 1 desire to bennderatoodas not deter- 
mining any rinestion of right at Sandwich 
Bay, but m<rely as considering the judg.. 
nient of the Surrogate conclusive, so far as 
it goes, as to the removal of the nets beyond 
certain limits: the stihsequent carrying them 
to the defendants' own establishment at 
Eagle River was a distinct transaction. As 
it is in evidence, that the nets arc in the de- 
fendants' possession, they should have come 
prepared to restore them, if required to do 
so. Jt is impossible now to send the plain- 
tiffs back to the Labrador ; and as the jury 
have ass(3ssed separate damages for the nets, 
I think I am bound to give judgment for the 

ERBON & Cowan, appellants, 
James Quinlan, respondent. 

HIS was an actio* to recover the sum 
of;e45, for supplies delivered in the spring 
of the present year for prosecuting the seal- 
fishery. It appeared at the trial of the cause, 
in the Surrogate, CoHrt at Harbour Grace, 
that the plaintiffs below had not called upon 
the defendant for the payment of the sup- 
plies isMied to him by them, until thebegin- 
nmg of October, and that the d .endant 
then ten<lered them a quantity oi fsh in 
satisfaction of the del t. Upon these facts 
the Surrogate was i iduced to give judgment 
in favour of the defendant, as he held that 
the tender of payment m lish by the defend- 
ant was, under all the circumstances of the 





Hunt & Bbabd. 

December 2Qth. 

Fish is Dof a le- 
1 and sufficient 
tender uayment 
of tt tisfij coiilraot-M 
ed for articles far'< 
nished for the pro* 
seouiion of the 








case, legal and suflicientk This judgment 
vas, however, immediately reversed by the 
CJiief JHStiee, who mid : — 

It docs not appear that the supplies issued 
by Rogersott ^ CowaM, were, iu the course of 
the c^-Jisheryy as between merchant and 
planter, or eveu that they issued as supplies 
at all, properly so called. The articles fur- 
nished by Ihem. to the defendants were for 
the seal-JiaUetyr and not being paid for in 
seals or oil, remained as a general debt. 

FisA is 4 iegal tender only in virtue of a 
contract cither expressed or implied; and 
where there is no express contract, the cus- 
tom of the fishery is caUed in to show what 
was the presumable intention of the parties. 

It is usual to issue supplies upon the faith 
of the voyage ; an^, in such case, the sup- 
plier is bound to receive fish, and the plant- 
er is equally bound to deliver fish : neither 
can refuse to fulfil this part of their implied 
contract. But the rule, to be good, must be 
reciprocal ; it cannot be binding upon one, 
and not so on the other. Suppose fish had 
been in great demand, could Rogerson Sf 
Cowan have refused bills, and compelled 
Qumkm to give them fish ? They could 
not, (ofJhey were not the suppliers of the 
voyage; tnd^ consequently, as they could 
not have forced a payment in fish, they are 
not com^la^e to receive it ia payment. 



8 judgment 
rseU by tlic 

plies issued 
iie course of 
rchant and 
as supplies 
articles fur- 
ls were for 

paid for in 
I debt. 
I virtue of a 
plied; and 
ct, the cus- 
show what 
the parties, 
on the faith 
Be, the sup- 
d the plantr 
h : neither 
leir implied 
)d, must be 
; upon one, 
)8e fish had 
Rogerson Sf 

They could 
3liers of the 
they could 
3h, they are 



p. W. Carter, Ksq. aqninsl T. B. 
Kendell, Bt<q. 



HE best accoimt of the circumstances 
connected witit this case, will be derived 
from the following judgment upon it:-~ 

This action is brought by the plaintiflT, 
styling himself Naval Oflicer, against the 
defendant, for intruding upon his office, and 
appropriating his fees. In form it is for a 
trespass ; but, in e^cct, it is to try tbo title of 
the office in questioity and the right of rocei- 
ving the fees. 

By the early navigation acts, the Govern- 
ors of the plantations were charged with 
the duty of seeing the provisions of those 
laws properly enforced ; and, for that pur- 
pose, they were empowered to appoint cer- 
tain officers under them, who are called 
3Javal Officers. The 12lh Charles 11., c. 18, 
sec. 11, enacts, that if any Governor shall 
sutTer a foreign ship to load, or unload, any 
goods within the precincts of his govern- 
ment, until the certificate (of ownership) 
shall be produced before him, or such as 
shall be by him appointed^ &c. such Governor 
shall b^ put out of his government. This 
power in tbo Governors is more distinctly 
recognized by the 15th of Charles II., c. 7, 
seci 8, where it is enacted, that no ship 
coming to any British rlantation shall lade, 
or unlade, any goods, tv itil the master of 
such ship sball first have made known to the 
Governor of such plantation, or such other 
person or officer as shall be by him thereunto 
authorized and appointed^ the arrival of the 
said ship, and have delivered to such Go- 
vernor, or other person, or officer, a true 
inventr y of hex \^Am%, ^c. under the pain 
of the loss of such ship, he. 

January ItMA. 

A Naral Officer 
in ths pltnlBlioiit 
must be appointed 
by the Governor, 
ond ap|)roTed by 
Iho ComtniMioDera 
of the Cuilooie ; 
and most elso givo 
security for tho 
faithful perfofmx 
ance of Ibe duties 
of hie office. [See 
Hogsett v. Boyd, 
poet. Bat note, 
ibit office baa ainoa 
been abolished by 

Il .., 



182 f. 





K I 


The 7th and 8th of William Jll., c. 22, 
sec. 5, recites, that by the last act, the Go- 
vernors of the plantations were empowered 
to appoint an officer for the performance of 
certain things in such act mentioned, which 
officer was commonly known by the name 
of the Naval Officer ; and requires that eve- 
ry person appointed to such office should, 
within a certain time, give security to the 
Commissioners of the Customs for the faith- 
ful performance of his duty ; and in default 
thereof, to be disabled from executing the 
office; and until such security should be 
given, and the person appointed approved 
by ^he Commissioner of the Customs, the 
Governor should be answerable for the per- 
son so by him appointed. The last act to 
which it may be necessary to refer, is the 
10th Geo. III., c, 37, sec. 2, which regulates 
the fees of the naval officer. 

From these acts it appears that the nav?! 
officer in the plantations is a person appoint- 
ed by the Governor and approved by the 
Commissioners of the Customs, and who has 
given security for the faithful performance 
of his office. Any person differently ap- 
pointed, or who has not been approved, or 
failed to give the security required by law, 
is not the ^' naval officer" contemplated 
by the statutes, and cannot either perform 
the duties they enjoin, or claim the fees to 
which they entitle him. 

The plaintiff rests his claim to the office 
in question upon the strength of his posses- 
sion, and recognition by successive Govern- 
ors of the island, within whose appointment 
the office lies. In general cases this proof 
would be sufficient ; but as the title to the 
office is directly put in issue, and it does 
appear, by the plaintiff's own showing, that 
he has, in some instances, been addressed 




1., c. 22, 

Lt, the Go- 
im powered 
Drmance of 
led, which 
f the name 
s that eve- 
ce siiould, 
rity to the 
r the faith- 
in default 
jcuting the 
should be 
I approved 
Htoms, the 
or the per- 
ast act to 
efer, is the 
h regulates 

t the naval 
n appoint' 
ved by the 
id who has 
rently ap- 
proved, or 
ed by law, 
er perform 
the fees to 

) the office 
bis posses- 
re Govern- 
this proof 
title to the 
d it does 
tving, that 

by the Governors as Deputy Naval Officer, 
J think he is called upon to show that he is 
the officer he styles himself, plenojure, and 
does not derive his title and possession of 
office as the Deputy of Mr. JSohle. And, 
I think, also, that I am entitled to proof, 
that the security required by law has been 
given, since the statute absolutely disables 
any person from executing the office who 
has failed to give such security ; and, being 
a public statute, the Court is, ex-officio, 
bound to notice it. Now, no appoint Jieut 
of the plaintiff from the Governor of the 
island has been produced, nor anything 
from which 1 can infer an appointment as 
Naval Officer. An official note from Go- 
vernor Holloway to the plaintiff, addressing 
him as ISaval Officer, has been laid in evi- 
dence ; and I am ready to assent to what has 
been advanced in argument, that no precise 
form of appointment is necessary ; but it is 
essential that such appomtment should ap- 
pear to be clearly intended by the Governor, 
and not left to be collected from a loose and 
accidental mode of expression in official 
communications. And it is the more essen- 
tial in this case, because the statute of 
Charles JI. prohibits any ship from loading 
or unloading, until the master shall have 
reported his ship and cargo to the Governor, 
or to the officer " by him thereunto autho- 
thorized and appointed," under pain of sei- 
zure and confiscation. 

Every consideration of4)ublic expediency 
requires that an officer upon whose due ap- 
pointment consequences of so much impor- 
tance are made to de^ond, should be law- 
fully and regularly qualified. I am of opi- 
nion, therefore, that the plaintiff has not 
made out his case, and, consequently, judg- 
ment must pass for the defendant. 







1821. In pronouncing tins judf^mcnt, 1 must 

desire, however, to be understood as giving; 
no opinion upon the legality of the defend- 
ant's appointment. 


Felruary lit. 

A meie voluntary 
•gent (i. e. one who 
does not receive 
any valu&ble com- 
pensation for his 
services) is not li- 
able for non-fea'> 
sance, or a total 
neglect to execute 
Iho orders of his 
principal ; but for 
8 mis-' feasance, or 
partial and imper- 
fect performance, 
be is respousibie, 
TVhother he is to 
be paid for his 
trouble or not. And 
for a mal'fcazanco, 
or doiug an aot 
which one ought 
pot to do, every 
man is 8Hswera-> 

Trustees of William Young against Att- 
WOOD 8s. Hayn£s. 


N action to recover the sum of £270, 
being the amount of the value of the schoon- 
er called the Enteiprize, which the insolvent, 
Youngf had ordered the defendants to in- 
sure, in the year 1819, and which they had 
neglected to do. The vessel went on a 
sealing voyage the following winter, 1820,. 
and was lost. 

Per Curiam. I am of opinion that the 
plaintiils cannot recover, on two grounds : 

First, — Because the undertaking of the 
defendants to have the schooner insured, if 
actually given by them, was a voluntaryi 
undertaking'^ and being such, cannot support 
an action for non-feazance, or not perform- 
ing it, unless some step in the course of per- 
fortnance be proved to have been taken ; 
and there is no proof of any step being ta- 
ken, or any part of the undertaking (if 
made^ l)eing actually performed. [See the 
reasoning of the judges in the case cited 1st 
il^/arjAa/r^ Insurance, page 207, and Paley's 
Principal and Agents page (12, and cases 
there collected.] 

Secondly, — Because the undertaking, or 
contract, to have the schooner insured was 
not clearly given, but was contingent, and 
made to depend upon the will of Altwood, 
then in London. This 1 collect from the 
evidence of young himself, who says, ** that 
he will not uudertake to swear positively^ 


t, 1 must 
I as g'ivin.i; 
lie defend' 

\imt Att- 

n of £270, 
le schoon- 
ants to in- 
1 they had 
veiii on a 
ter, 1820^ 

1 that the 
rounds : 
ig of the 
insured, if 


i'se of per- 
n taken ; 
being ta- 
taking (if 

[See the 
! cited 1 st 
id Paleifs 
and cases 

aking, or 
ured was 
^ent, and 
from the 
ys, " that 


that Ilaynes actually undertook to have the 
insurance eflected ; there were some doubts." 
And again — ** when witness applied to have 
the schooner insured, Hayucs said that he 
had orders from his partner, Attwood^not to 
extend their business, but that he would 
send OH the order^ From this evidence I 
collect, that Mr, Haynes expressed his 
<loubts whether his partner, Atttvood, in 
London, would agree to advance the premi- 
um and effect the insurance, but that he 
would give it the trial,, and send on the or- 
der for insurance. And that Young, having 
more faith in Attwood's effecting the insu- 
rance, from believing it to be too much his 
interest for him to refuse, reposed in full 
coafidence upon the insurance being effect- 
ed ; but his doing so, and being disappointed, 
will not, therefore, give him a right of action 
against Atttvood S^- Uaynes. A promise may 
be implied as well as expressed ; but it must 
be clearly implied, to support an action, for 
the breach of such promise ; and more es- 
pecially where there is no valuable consider- 
ation given. 
Judgment fof .e defendants* 

Arthur Hunt, appellant, 


Hunt, Stabb, Pres'^on&Co. respondents. 

EU Curiam. This is q, proceeding, in 
the nature of an ejectment bill, for the pur- 
pose of obtaining the deeds of title, togetiier 
with the possession, of certain plantations 
situated in this island. As it is an appeala- 
ble case, I shall take a view of such of the 
facts as are not uispijiied, and «re necessary 
4o the judgment 1 am about U> give. 



Trustew of 
Wm. Youno 


Attwood & 


February 5thi 

An sdmissionof 
(be cause of action 
by some membera 
of a commercial 
RttB, will not bind 
the other (lartners* 

m ^ mv^M-tw ' ,w r " 



I '1, 




Hunt, Stabd, 

Preston & Oc. 


Two of the defendants, Henry Hunt and 
John Halt Noble, were concerned in trade 
in London, under the firm of *' Noble Sf 
Hm««,-" and they were also engaged, toge- 
ther with Thomas Stabb and John Preston, 
in another concern at Newfoundland, under 
the firm of ** Hunt, Stabb, Preston 4' Co. 
The two firms had very extensive deahngs 
together, in the course of which the detcnd- 
ants were in the habit of remitting the e- 
turns of their fishery to Noble 4^ Hunt, ^ud 
drawing bills on them for the payment of the 
current demands of their establishment. It 
is stated that, in the year 1810, the draft of 
Hunt, Stabb, Prestcn ^ Co. upon Noble ^^ 
Hunt were greater than they had the means 
of meeting ; and that Hennj Hunt, the ma- 
naging partner of Noble ^ Hunt, applied 
to the complainant to advance monies 
for the purpose of meeting the drafts ot 
the respondents, and that the complainant 
did advance about nine thousand pounds ; 
but whether upon the credit of Noble ^ 
Hunt, or of Hunt, Stabb, Preston ^ Co. is in 
dispute between the respondents. Hunt Sf 
Preston ; the former slating in their answer, 
that the money was borrowed of the coni- 
plainant on a mortgage of the property m 
Newfoundland ; and the latter denying that 
(ixct, and affirming it was the balance of an 
account current solely between the com- 
plainant and Noble ^ Hunt; while the com- 
plainant appears, from his affidavit, to have 
considered he had a claim on both firms. 
Be the fact as it may, for the present, the 
complainant, insisting upon having some se- 
curity either from Noble ^ Hunt, or from 
the respondents, deeds of mortgage of the 
property in question were prepared m Lon- 
don, anil execuiea oy fcurcc x:i isi=; tt-.p-^si^j= 
ents, Hunt, Noble & Stabb, some time la 

r Hunt and 
led in trade 

*• JVoWe 6f 
iged, toge- 
Im Preston^ 
land, under 
ston 6f Co." 
ve dealings 
the defend- 
;ting the re- 

Hunt, and 
'Hientof the 
iihtnent. It 

the draft of 
on Noble ^ 
\ the means 
<mty the ma- 
lint, applied 
ice monies 
le drafts of 
md pounds ; 
of JSlobie ^ 
m ^ Co. is in 
ts, thmt 4* 
heir answer, 

of the corn- 
property in 
denying that 
alafice of an 
m the com- 
pile the com- 
avit, to have 
n both firms. 

present, the 
ing some se- 
lunt, or from 
•tgage of the 
ared, in Lon- 

>me time in 





Way, 1816, and sent forward to be executed 
by Preston, who was at the time in New- 
foundland, it appears by Mr. Prestons 
answer, that the mortgages were handed to 
him, and that he excused himself, alleging fl"''^, Si^bb. 
as a reason, his apprehension of end angering '^^^^'^^ & Co. 
the credit of their house by the necessary 
publicity of recording the deeds, and at the 
same time professing his desire to see the 
complainant secured. Jt further appears, 
that soon after this refusal, on the part of 
Mr. Preston, to execute the mortgage, he 
wrote a letter to the complainant^ dated 20th 
June, 1816, in which he acknowledges the 
receipt of a letter from the complainant, to., 
gether with the mortgage»deeds^ to which 
lie says he has no objection to accede, but 
for the necessity there was of having them 
recorded in public Court; and proceeds as 
follows: — "It lias struck me you would 
have proceeded better by a bill of sale, and 
a redemption bond ; pray turn over this in 
your mind, and if you think so,. Mr. Hunt • 
or Mr. Stabb may use the enclosed power 
of attorney ; possession may be given, ahd no 
enrolment required.'* The power of attor- 
ney enclosed in this letter was fron^ the 
respondent, Preston, to his partners, Henry 
Hunt and l^homas Stabb, giving them a ' 

joint, or several, authority to sell and dispose 
as they, or either of them, should think fit, 
for his (^Preston's) mcst benefit and advaflta^^e, 
all his share tctd ritarest in .the plantation 
in question, tlpo? receipt of this power and 
the letter in '^u^rh. it was enclosed, the 
deeds in proof before the Court were pre- 
pared and executed by the; ref&poadeat!}. 
Bunt for himself, and Jokn Hatt Nebte (un- 
der power for such pat pose), also, by Stdbb 
for himself, and Hunt on behalf nf JPreston. 
by virtue of the above-mentioned power. 


.N r 






Hunt, Stabb, 
Preston & Co. 


It appears that Mr. Preston afterwards 
went to England, and refused to confirm or 
acknowledge the act of his attorney ; and 
after ineffectual attempts at an amicable ad- 
justment, the present proceedings were in- 
stituted. - 
At a former hearing, in another stage ot 
this case, 1 had occasion to observe upon 
the singularity of its situation : one of the 
respondents, Hunt, had gone the length of 
confessing the complainant's mit, and con- 
firmed his bill in every important particular ; 
and two others, Noble 8c Stabh, did not seem 
disposed to dispute it. They have since 
done that which J consider to amount to a 
similar confession of the cause of suit ; and 
the remaining respondent, Preston, is left to 
contest it alone, and in the face of the ad- 
missions of his partners. A case so situated, 
is, certainly, very peculiar, and one for 
which I cannot find any precedent or re- 
semblance. Upon principle, I am not aware 
that it has been held that the admission of 
the cause of suit by one partner in trade is 
conclusive against the other partners ; but 
it is to the whole extent of the interests of 
the party confessing, and is strong proof 
against the firm, and requires stronger proof 
to repel the conclusion which must other- 
wise be drawn from it. 

Two objections are raised by the res- 
pondent, Mr. Preston ; one, to the want of 
consideration for the deed, and the o|her to 
the imdue manner of its execution. In sup- 
port of the first objection, he states in his 
supplementary answer, which is upon oath, 
that he believes the debt of £7,280, claimed 
to be due by the complainant, was contract- 
ed with him in a running account, prior to 
.♦Kft y^ftT 1816. by the firm of Nohle & Hunt, 
Boiely upon their own credit and^account. 


confirm or 
trney ; and 
;s were in*- 

ir stage of 
serve upon 
one of the 
18 length of 
•t, and con- 
; particular ; 
lid not seem 

have since 
amoant to a 
f suit; and 
on, is left to 

of the ad" 

so situated, 
md one for 
ident or re- 
tn not aware 
dmission of 

in trade is 
rtners ; but 

interests of 
strong proof 
;ronger proof 

must other- 

by the res- 
I the want of 
the ojher to 
m. in sup- 
i states in his 
is upon oath, 
,280, claimed 
was contract- 
unt, prior to 
^oble & Hunt, 
and account. 






*This, however, is expressly denied by Mr. 
Hunt, in his answer, which is also upon 
oath, and is corroborated by the entries in 
the books of the respondents at Torquay, „ ^ 
and the depositions of Glover and Fitcairne Pbeston a'co. 
as to the circumstances under which the 
entries were made. Still, however, if this 
suit were primarily instituted to recover the 
sum of money which is claimed by the bill, 
as the consideration for the deeds, 1 should 
feel inclined to give the respondents the be- 
nefit of a cross-bill, for the purpose of elicit- 
ing any circumstances within the private 
knowledge of the complainant which might 
show how the debt arose, and from whom it 
was actually due ; and the more so, as the 
complainant's own affidavit, which is »a evi- 
dence, under the statute of 5th Geo. IJ., c. 
7, does not expressly state the fact of having 
advanced the money on the credit oSHunt, 
Stabb, Preston & Co. He says, that from 
time to time he made large remittances to 
Noble ^ Hunt, in order to enable them to 
support the credit of the respondents' house, 
by paying their bills, and preventing their 
dishonour ; but it does not follow but that 
he might have made such remittances pure- 
ly upon the credit of ISoble ^ Hunt; and 
that he did not look to the respondents 
alone, does appear from what follo-ws, viz. : 
that he insisted upon havins some ample 
security from Noble^- Hunt, or from Hunt, 
iftabb, Preston 4' Co. Without offering anv 
opinion as to the true state of the fact, l 
think that I could not have refused to leave 
the case open to a cross- bill had it materi- 
ally rested upon the question, whether the 
debt contracted with the complainant was 
on account of respondents, or on account of 
lyohle & Hitid ? ikjl iliut the debt was 
contracted in some way or other, and is still 

11 • Si 


182 r. 



Hunt, Stabb, 
Prbston & Co, 


due, is no where denied ; nor is there any- 
thing which appears upon any part of the 
proceedings before the Court, from which a 
doubt can reasonably be raised to the con- 
trary. This debt, although it were admitted 
to be contracted by Noble ^ Hunt, and sup- 
posing such to be the fact, is sufficient to 
support a guarantee on the part of the res- 
pondents. The only question before the Court, 
then, is, are the deeds in evidence good and 
valid instruments in law? The respondent, 
Prestcrit objects to them so far as they pro- 
fess to be executed in his name ; that he did 
not authorize a mortgage^ but expressly di- 
rected an absolute sale of the property. 
But let us look at the whole case : A debt 
was due to the complainant, which three of 
the respondents agreed to secure by mort- 
gage of theirjoint property in Newfoundland, 
The mortgage-deeds are sent on to the re- 
maining party, who objects to executing 
them merely because it was necessary to 
record the mortgage ; at the same time pro^ 
fessing his desire to see the complainant se- 
cured, and pointing out a different mode of 
effecting the same object, viz., by a hill of 
salCf under which possession might be given 
without enrolment, and a redemption-bond. 
And in the very letter containing the sug- 
gestion, a power of attorney authorizing a 
sale is contained, and laid at the discretion 
of the complainant, to be used in the man- 
ner pointed out, ifhe should think it eligible. 
After this, how is it possible to maintain 
that he intended an absolute scUe of the pro- 
perty for money in hand, and notasB. security 
for the debt due to the complainant? Why 
was the power of attorney sent to him, if 
a sale to a stranget were intended of the 
very property to which the complainant was 
looking ^s a security for his debt? Why was 






tliere anv« 
art of the 
(1 which a 
) the con- 
i admitted 
I, and 8up> 
ifficient to 
f the res- 
I the Court, 
! good and 
J they pro- 
bat he did 
jreesly di- 
: A debt 
h three of 
! by mort- 
to the re- 
icessary to 
3 time pro^ 
ainaut se- 
t mode of 
r a bill of 
kt be given 
g the sug- 
thorizing a 
I the man- 
it eligible. 
) maintain 
f the pro- 
B a. security 
nt? Why 
t to him, if 
3d of the 
^inant was 
Why was 

he addressed at all ? Taking all the cir- 
cumstances into consideration, before and at 
the date of the power of attorney, and the 
letter of advice which accompanied it, 1 
should say that it appears to have been the 
intention of the respondent to secure the 
complainant ; and that the power which ho 
gave has not been exceeded. 1 must, there- 
fore, comply with so much of the prayer of 
the bill as goestothe delivery of the posses- 
sion of Adam's and Lady's Ships'-rooms, 
together with the title-deeds ; but I must * 
be understood not to pass any opinion upon 
the debt, whether it is the proper debt of the 
respondents or of Noble ^ Hunt, for the 
reasons I have already stated. Should that 
fact be of importance to either of the parties, 
it may form the subject of a subsequent 
inquiry, in which the respondent, Preston, 
will have the benefit of all the evidence he 
may desire to adduce respecting it. 



Hunt, Stab8» 
Preston & Co. 

{ 1 






June ZQth, 

If a fire take* 
plaoo in a ship 
from a notorimn 
defect in the mode 
of fiilioghcrup, or 
from any other 
gross and culpable 
neffkcton the part 
of the oumers to 
adopt the ordinary 
and necessary 
means' of preventing 
it, Ihe exception 
of " Firb" iu the 
bill of ladinf< » will 
not protec . tHsoa 
from a li^in'kv to 
answer i-.i ito 4i\» 
mnge oeC'sv«V.<;n;d 
by such fire >a 
goods on board the 


Hunters & Co. aj^ainsl Owners of the 
Schooner Morning Star. 

CTION to recover the amount of da- 
mages clone to a cargo of flour shipped by 
plaintifl's on board the Morning tStar^ a ves- 
sel belonging to defendants. 

The fact of the cargo being shipptd and 
damaged by ^re is admitted. A bill of 
lading, with the usual exception against 
fire, was produced ; and it was contended 
that the tire which injured the car^o was 
accidental, and, therefore, that the defend- 
ants were not liable to answer for the con- 
sequences of it. This was the principal 
pomt in issue. 

Per Curiam. •* Fire " is excepted out of 
the risks of carriage, by the terms of the bills 
of lading, as well ns by the provisions of 
the law. It stands upon mainly the same 
footing as perils by sea, or other casualties 
and accidents which are presumed to be out 
of the power of the master to prevent ; but, 
like other perils, there must be all due care 
taken to prevent fire. If it be caused by 
negligence, which the master might have 
prevented, or from an original and apparent 
insufficiency of the thing which was to con- 
strain or prevent it, it is not an accident, and 
lays a fair ground of action against the 
owners. They impliedly undertake, as car- 
riers, that the vessel shall be staunch and 
sound, and everything on board essential to 
the safe carriage of the cargo, properly fitted 
and secured for the purpose to which it is to 
be applied. Nothing surely can be more 
necessary than security against the dangers 
of fire, particularly when made below, and 
close to the vessel's bulk-head. Now, ap- 
plying these preliminary remarks to the 


lers of the 

lount of (la-" 

ghippecl by 

fiitar, a ves- 

ihipped and 
A bill of 
ion against 
) contended 
car;;o was 
Ihe ciefend- 
for the con- 
le principal 

}ptcd out of 
3 of the bills 
rovisions of 
ly the same 
ir casualties 
id to be out 
event ; but, 
all due care 

caused by 
might have 
id apparent 
was to con- 
ccident, and 
against the 
ake, as car- 
taunch and 
essential to 
)perly fitted 
hich it is to 
in be more 
the dangers 
below, and 

Now, ap- 
rks to the 





Owners of <be 

Case before the Courts how does it stand? 
A vessel fn'ighted with a cargo from Halifax 
to tl'is port lias a chimney in the hold before 
the uulk-head, which chimney consists of ,,„„^„ „. 
bricks, placed upright, so as to leave only MoRNTNo''i5TAiit 
four inches between the tire and the dk- 
head, and e en this hair-breadth re ed 
less secure by only half-an-inch ot itar 
between the joints of the bricks. It is re- 
markable, t)0, that this half inch of mortar 
was in front of the joints, and, therefore, ex- 
cludes the presumption that the mortar had 
been originally there and worked out. 

It appears to me to have been so careless- 
ly built, and the insecurity so apparent even 
to the master himself before the voyage be- 
gan, that I cannot say it is such a case as is 
provided against either by the law, the terms 
of bills of lading, or the justice of the case ; 
and, therefore, I shall give damages to the 
amount of the injury sustained. 

Case from the Surrogate Court, and 
answer of the Chief Justice. 

Ji HERE have been divers claimants upon 
the insolvent estate of A, B & Co., receivers 
of the voyage of C, D & others, for fish-ma- 
king, room-hire, bail-money, boat-hire, and 
freight. The trustees of A, B & Co. are 
desirous of having the opinion of the Court, 
first, whether such claims can be admitted ; 
and, if they can, in what manner they are to 
rank, whether as preferable demands, or 
equally with current supplies? 


There is a rule among the records of the 
Supreme Court, which appears to have been 

July mk. 

Under liia 49th 
Geo. III. c. 27, 
there are only two 
kinds of claiiu up-* 
on an iosolvent 
estate which ara 
entitled to a pre- 
ference ; iriz. ««•«• 
rants' wages, and 
current supplies ; 
but among cur- 
rent-supplies, fish"^ 
making and freight 
hold a higher rank 
than the others. 










Li 12^ 

no ^™ 





■ 22 

■ 2.0 



1.25 iu 









_? IIVMGE . ints 

SS. 1653 East Main Street 
E^ Rochester, NY 14609 USA 
^S Phone: 716/482-0300 
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e 1993. Applied Image. Inc . All Rights Rasarvad 











1 1 

I - ^ 






• — ^TJnf^l '^.^ ^J^'^'fJ^iice, With the assist- 

Cm. rr«« th. Bur. !^,"J^L « r •'"'*'«^«* ^^ 'he Court of Sessions, 

wMt. Court. & f '^'"f preferences of payment to claims of 

ChJi °/ •''• t "^'^'^^ description Tn the order in H^.ich 

Ch..f J«s».c.. bey appear to have arisen in the cou^e of 

inn„l'"f "^7^^- * "^^e*- could I Jim 
upon what authority this rule was framed ; 

Inch « '*'''^^"^^"*="" ' ^"d *^^^ 'f'^ ^ere, 
«nch usage appears to have been repealed! 

imhTfl' 'l"?''««^««totes, at ieast. by the 
trlnnf ''"r^"*^* ^''»*^»' admits but two pre- 
g^., which are to be paid i/equal propo?^ 
eq.iaily ^"'^'^'W'^'* who' are to wnk 

it lia« always appeared to me that the 
rule, however well-intended, was not within 

to iiTr^^'h ^""'•** ^'"^'' •» authorh^ed 
iffectfnJ'f. ™'"5 of pw/i.., but no rules 
aHecting the r.^/i/, oj ifidividuals, which be- 

wmwA Ji" '^''''' . ''*'"'• ^"d «••« exclusively 
withm the provmce of Parliament. ^ 

nT.L I .^'*^ '"^ *^ »^e this :~A current sup. 
Konn^^ universal usage of the fishery, is 
I mind to supply every article essential to 
the conduct and completion of the voyage 
f he wishes to entitle himself exclusively to 
Its proceeds ; any articles indispensable to 

current demands upon the voyage equally 

and od wuhout providing such articles, ho 

^.^,«»«de'-ed I able to admit them ratably 

w th his own claim. This holds, generallv 

with rejrard to nil anvir.!;-- . u..! Hl^eraiiy, 

With regard .o all »oppirr,Tbot Ihr'afe 

° . ^ " ''"ri'"ci3 i uuK cnere are 

fr.^..l ""I"' °f ™PP"" "•''«'' """" » pre- 
ferable claim to every other, namely A«J. 

|««W and /„.Vri, ; Ld tbe'rea^nSS: 

i'^i^~r?."i'''-^«'y>»? ""a lien 
V— ©--«= aw UI3 pussessioa for work fui4 


ith the assist* 
t of Sessions^ 
: to claims of 
der in which 
the couiise of 
could leam 
i^as framed; 
recency of 
en if it were^ 
m repealed^ 
east, by the 
liuttwo pre- 
ervants* wa- 
lual propor- 
are to rank 

me that the 
i not witiiiii 
It no rules 
, which be- 
t. ^ 

5 fishery, is 
ssential to 
le Voyage, 
dasively to 
nisabJe to 
self, forms 
e equally 
es the fish 
tides, ho 
n ratably 
there are 
*e a pre- 
>n is this : 
IS a lien 



answer of the 
Chief Justice. 

labour performed npcn sucn goods. Thus, 1821 

the fish-maker for the ihakino:, and the V^i—l^l^ 
earner for freight, have each tlieir lien ; and c... from th.s.r 
neither is bound to part xvith the goods rog.t. Court. & 
until he IS paid to the full amount of hin 
demand. The conveniciniee of the fishery 
has made this lien ambulatory in most in- 
stances, and in general cases it trarels with 
the finh into the hands of the regi^^r re- 
ceiver of the voyage; beyond these two, I 
know of no preference among current sup- 
pliers, and even thesef are not properly j9r£- 
ferences, but specific ■ liens upon the fish 
Itself, eitisting at thetihie it passed into the 
hands of the ri^cefver^ and received by him 
under an implied contract to hold it 6ubject 
to sach iien; thetrU8tee8,ofcouroe, take the 
fish subject to the same olHigations under 
which the insolvent hdld it« 

t * i * * * . f ^» ( , 

.1 > 

I ■ i 

.1-2 1 

\i (•••.-: 

In the matter of John M'Gbath's Will. Augu$tm 


_ HIS was an appllcaiiotii by one of the 
executors, Fetidergast.ib the Court, to call 
upon Fox, the other executor, to give into 
Court a faithful return ;ofitbeesti<a of tne 
iBie M*Grathr and also; to pay over any 
balance in his hands,; uadei*ithd direction of 
the Court, fpr the purpose of i)eibg^aced 
at interpft in. the pubKe fnUdsifor the ad- 
vancement of the objects contemj^ialbd by 
the will. The testatdr leftf the chiif part of 
his property, amounting to wQrelhjaa .£lpo(K 
to ais executors^ in trastiforithe child rea of 
/bar; and it was stated that tho property 
was iasdcurely placttditibte^^st in* private 
hands, and otherwise remaining uriooflected 

the exeeu|or, betiig\nowjba(toe ^he^Collri^ 


Acconnts of an 
executor eudited 
bj the Court, aod 
the moniee in hie 
bauds placed in 
public securitlea in 
England, for th« 
bene^l of son* 
cbildrea to Whom 
it had been'be<« 
queaihod by the 




I ' < 



In lb* matter of 
JORM M*Urath's 


the items were successively gone intr, and 
the accounts audited and passed. 
^Per Curiam. As by the testator's will, 
the interest of what money he liad in the 
hands of Messrs* Kemps ^ Co, and Mullow^ 
ney, was to be applied to the sole mainte- 
nauce and benefit of Fox's children, I sug- 
gest, for the consideration of the executors, 
that, the money should be placed in the 
public funds, and the annual dividends 
received by Fox, and aopropriated as 
directed bv ihe will, tiJ! the diildren should, 
respectively, become of age, and entitled to a 
distributive share of the estLte. 

The suji^gestioa of the Court was adopted 
by the executors ; and it was also agreed 
that the monies should be invested in the 
name, and subject to the orders, of the Su- 
, preme Court, wbich.iby general order, would 
direct the annual dividends to be paid over 
to James Fox till further order made. 

Jtymf 9. 


. A giiiinar oanvot 
jiMtiry tb* ut of 


^H ' 

£riaf npoei • ▼••• 
s«l by an ordtr 
from tne Govtrnor 

^^^^^Hj i 

rtqairiRf all vm* 

^^mi " 

■eb, btfora llMy 


prooMd to Ma, to 
p« proTidtd with 



patHi from tbo 

^^■■1 i 

Oovarnor, oo paio 
•r baiog fir«d at. 


ud eompallad to 

^^W 't' 

pay for tbt ibot 
and powdtr. 



John F. Triminoh^m & Co. against ' 
Johnston Gaskin. 

CTIQN of trespass for firing upon plain. 
tiflTs* vessel ; compelling her to come to 
anchor; and obliging the master to pay the 
sum of six.fibillings and eightpence for the 
powder and shot expended in stopping the 
vessel, wii'fi J !!;'.» r.j;ij|!io 'it:: ' 

The defendtat, who is a soldier in the 
Royal Artillery, justified under certain or* 
ders received from, his commanding officer, 
relating to vessels passing the fort, at the 
entrance of the harbour ; , and stated, that 
the vessel's not answering the description 
tnvexk ia the nasa (nhm htintt fjfuaroin *lo4,f%wilxf.A 

Mft JBrig, and not a JS^iuKiM) was the I 


i intCt and 


ntor's will, 
liad in the 
id Mullow- 
>le niainte- 
ren, I sug- 

ced in the 

priated as 
ren should, 
ntitled to a 

IS adopted 
so agreed 
sted in the 
der, would 
I paid over 


pon plain- 
come to 
o pay the 
ce for the 
pping the 

ier in the 
prtaic or« 
ig officer, 
>rt, at the 
ited, that 

was the 


reason of his firing at her, and compelling 
the roaster to pay for the shot. 

Certain written documents, purporting to 
be orders of the Governor and Commanding 
Officer of the Forced, were laid before the 
Court. It was also shown that the vessel 
called the St> Vincent was described in the 
register as a brig. 

Per Curiam. The single fact at issue be« 
tween the parties is, whether the St. FtM- 
cent was well described in the let-pass, m 
which she is mentioned as 2i Brig instead 
of a Brigantine. Had the case rested upon 
this point alone, I should have required the 
evidence of persons more coAnpetent than 
myself to say whether, acoo^tlr'ag to common 
acceptation, the word *' bifig'* in sufficiently 
descriptive of the 8t. Vincent: It appears 
that, in the certificate of registry, she is des* 
cribed as a ** brig ;** aiid in communicating 
with the collector of the customs, 1 am in- 
formed that it is not an unusnal mode of 
describing vesiels of a similar rig. But the 
plaintifis have taken a wider gronnd of ac- 
tion, and contend that the St. Vincent, being 
regulai'Iy cleared at the custom-house, and 
in the act of proceeding to sea, no such 
instrument as the ^* let-'pass,** in which she is 
said to bci insufficiently described, waS' ne- 
cessary to her protection ; and eifen suppo- 
sing it were necessary^ that it was unlawful 
to fire at the vessel. The defendant has' 
laid before the C6urt certain instruments in 
the form of orders from the Govemom of 
Newfoundland, requiring all vessels, before 
they proceed from the port of St; John's, to 
be provided With ptoses from the Govern- 
or, upon pain of being fired at, and com- 
pelled to pay for the shot and powder; and 
these orders are said to < be given i for ■ the 
better enforcing of the l^wsiof the revenue. 












and in conformify to ancieni usage in Enc- 
lancl. The oldest of these orders appears 

1°.. ^t^«^".?'"*f ^""^ *'•« ««' t'«^«. '« the 
year 1770: there has been some relaxation 

since m favour of coasting vessels, but as re- 
gards all vessels bound to foreign parts, the 
order of 1776, and other orders founded up- 
on H,haye been regularly enforced ; not. how- 
ever, without fhe question being sometimes 
raised as to their legality, as appears by the 
records of the Supremfc Court. In 1816, a 
vessel caHed the ** Betsy," bound fh)m this 
portfto Valencia, was fired at from Fort 
wiiiiam, and hit, and in consequence there- 
of, compelledto return into port and repair, 
^oine of the caigo was injured by the water 
which penetrated the shot-hole, and an ac- 
tion was commenced against the General 
commanding the Garrison for the amount of 
iDjoiy, which was estimated at £600; but the 
yeeael and caiigo being insured in England. 
It was thought' advisable not to press the 
cdse to trial until it should be known whe- 
ther the parties had not a shorter remedy 
against the underwriters. The underwriters. 
It appears, adjusted the damage done to the 
jessel but made no allowance for the cargo. 
J^o ulterior steps were taken to bring Sie 
case to triil, and it consequently abated : 
*ut It appears that some application was 
made to the Lords of the Treasury foranin- 
<Iemnity*or the. Joss sustained, and 1 was 
«aUed upon to report upon the case so far 
as ithad gone hferei I mehtion this case to 
jhowi that the usage of firing upon vessels 
fiomthw port has been disputed, but more 
ejpecially toahow that the principles which 
should guide the Court in the decision of 
the trifling case before it to-day, may be- 


arter, and, therefore, demand a suitable con 





p;e in Gng- 
ers appears 
time, in the 

, but as re- 
I parts, the 
[>unded up- 
; not, how- 
mrsby the 
in 1815, a 
d ih)m this 
from Fort 
ioce there- 
»nd repair. 
r the water 
and an ac- 
le General 
amount of 
)0; but the 

> press the 
own wbe« 
er remedy 
one to the 
the cargo. 
' bring the 
y abated ; 
ation was 
r for an in- 
ind ] was 
«e so far 
lis case to 
m Tesssls 
but more 
ies which 
cision of 
, may be- 
sd^ here- 
able con- 

After the most serious attention which 
I have been able to give the subject, my 
opinion is, that it is not lawful to tire upon 
n vessel under the circumstances in which 
the St. Vincent was placed in leaving this 
port. The orders profess to be made for 
the security of the revenue. It is, 1 appre- 
hend, open to much doubt, whether the re- 
venue really is protected by them ; and, even 
if it were, it does not appear to be a lawful 
mode of doing it. The revenue laws are 
like all other penal statutes ; the breach of 
them is punished by particular forfeitures, 
and they cannot be extended, by construc- 
tion, by the Courts that administer them ; 
nor can they be enforced in an unlawful 
manner. 1 am not aware of a single planta- 
tion-act which authorizes the party infrin- 
ging it to be fired upon ; and I know of no 
principle in the common law which sanctions 
such a mode of bringing offenders to just ice. 
Still .less should I find any proceeding by 
which the innocent may be punished for the 
guilty, and valuable lives and property 
placed at the discretion of a private soldier, 
and exposed to the uncertain consequences 
of a cannon-shot. 1 believe it is the prac- 
tice established by ancient usage iu certain 
ports in England, to compel the payment of 
port-dues by stopping vessels; and L know 
that in some of the Colonies the same mode 
has been adopted to enforce certain island 
duties. But, so far as it has fallen within 
my knowledge, it has been either sanctioned 
hy particular acts, or immemorial custom, 
which presumes an act. 1 know of no ge- 
neral law which would enable me to say 
that it is legal here; and I feel that 1 should 
be taking a very serious responsibility upon 
myself, if led into speculations upon the ex- 
pediency of a better mode of enforcing the 




ft Co. 




revenne laws, I were to allow an opinion to 

ricle^r'l'"' '"•^l'' •-»" '« -"'"on 
a pract ce which may be Ibllowed by the 
roost fatal consequences. ' 

fired at °«nn' ""f ^^ ^*"^'» *''" ^«»««> ^a* 
nred at, appears to me to be founded in a 

misapprehension of the law. It is. "herefore 
no defence to the action ; for everrman' 
to vtm -^r ^'. '^Ir. Profeisionjs rJquTd 
coimt V u"^' obedience to the laws of his 
hp n Jl^* '* ." "^"^ '*^*''» t»"»' *'>e vessel's 
being stopped was attended with any incon- 
venience, and I Hhall, therefore, Hm"t?he 
judgment of the Court to the money whch 
1 conceive to have been improperly leTied 

S^ember Olh, 

The •talul* 2. 
Geo. II., «. 30, 
dofli not require 
Mltotigo the ship's 
articles io any par- 
ticuhur piace or 
Manner ;«nd there* 
fore a ooDficlion, 
■eltinc forth that 
the Magistrates 
had fined the roas- 
ter for not itiAscrt- 
Ung bla name to 
the ship's articles, 
M bad oa the face 

P. W. Carter, Esq. q„i tam, against M. 


JUASE.~The defendant is master of the 
bng Commerce, and was sued in the Suorernp 

d«'e"/o r'/f h?' ''' of August forT4": 
aue to one of his crew who had been left be- 

wTs^tt'^thfr^r*•'"*r^*'• ThedeL'ce 
rad^esert^rf f^"" "U*^^ «ued for his wages 
staid fh„!.K ''' /^Pjy **» ^'•'^^^ it ^as 
ti ti 5 K*?^ "^*^' '^^^^ g»^«» him money 
to induce him to go on shore just as the 

IZni ^'' r l'*^ ^^« of sailiig fo? this 

bpin/n f 'l'^ '^'S^"* ""*^«'* pretence of 
dSant^wI^-.P'' chaise against the 
on thl «.T not, however, made out ; but, 
on the contrary, it was proved that the 

desire of the seaman, to buy a few nicessa! 

boanl nnrh"** ^ ''""* '"j""^^"^'* ^0 be on 
uuaru on the same evenin- 

'J'he CW gave judgment only for wages 

>pinion to 
> sanction 
id by the 

vessel was 
ded in a 
ery man, 
I required 
iws of his 
e vessel's 
ny incon- 
h'mit the 
ey which 
f levied. 

inst M. 

r of (he 
r wages 
I left be- 
is wages 
it was 
\ money 
• as (he 
for this 
mce of 
nst the 
It; but, 
at the 
, at the 
be on 



earned up to the time of the 8eaman*s going 
on shore ; intiinntin<2r, at the same time, that 
his being left behind was an unfortunate 
circumstance, owing to his own inlemper^ 
ance, but not, in the opinion of the Com% 
amounting to desertion, or a forfeiture of his 
wages. In the course of tiie trial, the ship's 
articles were produced by order of the Court, 
and the quantum of wages computed agree- 
ably to the sum therein agreed upon. The 
articles were in the usual printed form, and 
the name of the master was inserted in the 
body of the instrument, in his own hand- 
writing. On the day following the above 
trial, the defendant was cited before the 
Court of Sessions, at the information of the 
Receiver of Greenwich Hospital, for not 
having signed the articles agreeably to the 
statute 2 Geo. J J., c. 30, and was convicted 
in the sura of £35, being five pounds for 
every seaman on board the vessel. 

On the 30th of August, it was moved in 
the Supreme Court to quash the above con- 
viction, upon the aflidavit of the defendanf 
setting forth, inter alia, that the informatio. 
upon which the proceedings were founded, 
was upon the oath of one of the convictin'»' 
magistrates ; and that the Court of Sessions', 
as such, was not competent to hear the case, 
the statute having given the jurisdiction to 
one or more Justices of the Peace. An 
office-copy of the conviction was, at the 
same time, laid before the Supreme Court ; 
by which it appeared that the proceedings 
were drawn up as having taken place in the 
Court of Sessions ; but this fact being de- 
nied, the Churt granted a writ <^( certiorari, 
for the purpose of bringing the conviction 
regularly before it. The certiorari being 







h ' 






the conviction was brought into Court, and 
Wtt« as fohowH :— 

** Be it rt>merabereil, that on llic twenty- 
fourth clay of August, in the second year of 
llie reign of our sovereign Lord George the 
Foiirth, now King ot the United Kingdom 
pt Oreat Britain and Ireland, at St. John's 
Jii the said Island of Newfoundland, Peter 
fVesloH Carter, ofSt. Jolm's, aforesaid, £so 
receiver of Greenwich Hospital dues, for our 
^sovereign Lord the King, in his proper per- 

^iS^'f"™?,*'^'""'"® "**' '^^^"^ ^^ioomdinlJiunes 
JJlmkie, Esquires, two of His Majesty's jus- 
tices assigned to keep the peace, and also to 
hear and determine divers felonies, trespas- 
ses, and other misdemeanors in the said Is- 
land committed, and then and there gave us 
to understand, and be informed, that Mul- 
thcw Up/iam, master of the brig or vessel 
called the Commerce, of Dartmouth, did pro- 
ceed on a voyage from Liverpool, England 
on or about the twenty-sixth day of February 
last, bound from thence to parts bevpnd the 
seas, having on board the said brig or vessel 
IVilham Ludlow, Hepry While, milium 
•p«M^, William Meader, Andrew Lang, 
William Maddison, and James Connelly, as 
seamen and mariners composing the crew of 
the said vessel, without first coming to an 
agreement or contract with such seamen or 
mariners, in writing, declaring what wages 
each seaman or mariner was to have, res- 
pectively, during the whole voyage, or for 
so long a time as he or they did ship them- 
selves for, and he and Ihey first signing the 
same, against the form of the statute in such 
case made and provided. And upon the 
aforesaid day, he, the said Matthem Upham, 
appearing, and being present, and being 
called UDon to mnkn Ih'r Hpfpnoo owoin.* *u.. 




) Court, and 

the twenty* 
[;oncl year of 
Gt?orjje the 
<i Kin<7doni 
• St. John 8, 
land, Peter 
esaid, Esq., 
lues, for our 
proper per- 
i und James 
and also to 
ss, trcNpas- 
he suid Is- 
ere gave us 
that Mat- 
ijj or vessel 
h, did pro- 
teypnd the 
yf or vessel, 
, fVilliam 

'onnellt/t as 
lie crew of 
ning to an 
seamen or 
bat wages 
have, res- 
ide, or for 
np them- 
g^ning the 
te in such 
upon the 
'> Up/tarn^ 
nd being 

rntnmt tl%i. 


said charge, and having heard the same, and 
he being asked by uf<, the said justices, if he 
can say anything for himself, why he, the 
said Mattheto Upham, should not be con- 
victed of the premises above charged upon 
him, as aforesaid, pleaded not guilty 'of the 
same offence ; and being caJled upcu to pro- 
duce the ship's articles, refused so to do : 
whereupon evidence being called, William 
Ludlow, mate of the said brig, or -/essel, 
Commerce, upon his oath on the Holy Gos- 
pel then and there administered, deposed, 
that the crew of the said vessel at the time 
of sailing from England, as aforesaid, (ex- 
clusive of the said master and his son, a 
boy,) consisted of him the said William 
Ludlow, Henry White, William Lang, WiU 
Ham Meader, Andrew Lang, Wm. Maddison, 
and James Connelly ; and the said John 
Broom, Esq., one of us, the Justices afore- 
said, being called upon by the said Peter 
Weston Carter aforesaid, upon his oath upon 
the Holy Gospel to him then and there 
admmistered, deposed and said, that he, on 
the preceding day (the 23d of August inst.). 
did see the ship' rticles belonging to the 
said brig Commeru, and that the said ship's 
articles were not at that time signed by the 
said mast^, as required by the said statute. 
Upon which evidence, the said Matthew 
Upham was informed, that if he persisted in 
refusing to produce the ship*s articles, that 
a fine of five pounds for each of the seven, 
seainen, or mariners, aforesaid, would be 
levied against him for the use of Greenwich' 
Hospital. Upon this information being 
given him, he, the said Matthew Upham; 
produced the ship's articles, which were 
then found to have the said master's name 
ijubscnbed thereto: The aforesaid John 
Broom, Esq., further, on his oath, as afore- 






' Ml 




31*^7 l"^«Tbed to the 8uia anicles. 
was not 80 subicribed on the preceding daJ 
when the aforesaid article, /ere produced 

i?n Jl^ ?r*'°*^ ^^"'* ;--whereupon all and 
S f .he matters, things, and evidence 
lieing fuUv heard and understood by the 
said Mailiew UpAam. he is asked by us? 
the said Justices, what he had to say or offeJ 
Iml nV ^^'''''' ;?^'°'* '^® «»'»* information 

«"vP„ of ?• '*'*'* '** ?""^®' ^« t*^® evidence 
jnven as above-mentioned, and what he had 
to say vhy he should not be convicted of 

lafd^'fe; *^TT^' ^'^^ thereupon the 
said Mafthew Vp/tat^, by his attorney. 
^«.iry ffaw,on (t^e said 'Matlhetv ^S 
being also nresent and assenting thefeto). 
Bi?o'« '^°,?Y^'^^" '^"^ '^^"f^" *»^^t the said 
eTibitp? ^„ .1 T® "*''' yesterday, when 
exhibited in the Supreme Court, signed as 
they now are by the said ^atihew hpham, 

«nl^f "'iS^ *^** ^*r ^^ ^^^ subscribed his 
name to them : whereupon it manifestiv 

nSiTSM "''fr*?*' ««W^Ju3«cesrtharthe 
said Matihetv Upham is guilty of the Dremi! 
ses above laid to'^his cha?ge. yherofo?e we 
the said Justices, uoon the%ath of the cr^^i! 
We witnesses so taten. a» aforesaid, as we 1 
as on ^ view of the befere-mentioned shTp's 
articles so produced to us. as.* also. Se 
confession of the said MaUhew Upham Z 

/?rt*.^^^ ^^'"^ff« th«t the^idfiC 
Upham did proceed in the saM brig or vessd 

ShS'A ^f ?n™«"tb/ oS or^bout the 
wid 26th c^ay of February last, from the port 

WoirfX^**'- '** ?"Sland. bqund to p^r J 
beyond th^ seas, having on board Wilham 
l^hw, ffenry White, ktUiam Lang, wZ 
Header, Andrew Lang, Wuiia^m MaddZm, 
and James Connellu, da tlie seaman o"""^' 
mers composing the crew of theswr»esTeJ, 

=*^-^--- —■*--.-..,.._. 


hew Up/ianis 
suiu articles, 
receding day 
re produced 
Lipon all and 
ind evideuco 
tood by the 
Bked by us, 
) say or offer 

)e evidence 
what he had 
zoavicted of 
ereupon the 
9 attorney, 
hew llpham 
ng thereto), 
hat the said 
•day, when 
, signed as 
ew dpham, 
iscribed his 

ps, that the 
' the premi- 
erofore we, 
fthe credi- 
^id, as w^ll 
)ned ship's 
•also^ the 
Vpham, as 
d Ma^Hhew 
g qr vessel 

about the 
»m the port 
d to p^rts 
d Wtlliam 

aid ves^ei^ 


without first coming to an agreement, or 
contract, wiili mich Hcamcn or mariners for 
their wages, in writing, declaring what wa- 
ges each seaman or mariner was to have, 
respectively, during the whole vo) age, or 
for so long a time as he or they did ship 
themselves for, and he and they first sign- 
ing the same ; against the form of the statute 
in such case made and provided ; and, 
therefore, we, the said Justices, on the said 
twenty-fourth day of August, at St. John's, 
aforesaid, in the secotid year, aforesaid, do 
convict the said Matthew Upham of having 
proceeded to sett in the said brig, o^ vessel, 
Commerce, of Dartmouth, on, or about, the 
twenty-sixth day of February last, from the 
port of Liverpool, in England, bound to 
parts beyond the sea?, having on board 
William Ludlow, Henry White, fFilliam 
Latio; William Meader, Andreiv Lang, fFnu 
Maddison, and James Connelly, as seamen 
and mariners composing the crew of tho 
said vessel, without first coming to an agree- 
ment, or contract, in writing, with such 8ca> 
men or mariners for their wages, declaring 
what wages each seaman or mariner is to 
have, respectively, during the whole voyage, 
or for so lotig a timers he or they shftTl ship 
themselv^ for, and he and they first signing 
the same ; against the forih of the statrte in 
that case nkade And provided ; and the .aid 
Matthew Uphdm is hereby convicted hereof 
by us, the saiff Justices, on the oath of the 
credible witnesses so taken before us, as 
aforesaid, as welt as on the view' of th^ 
aforesaid ship's articles so produced to us. 
as also on the confession of the said Mattl^w 
Upham, as aforesaid, according iQ the torm 
of the stdtiltte ; and we, the t^ail^ JysticS 
do adjudge that the said \Matihew, VpMm, 
for hid said offence, aforesaid, shall Torfeit 














tvivV^V''"' f ^^« P°""d« f«r each and 

James Coknet,, tf^fe^lf r/tr'awTcl 
Hospital, to be paid to the said AT^^S 
C«r/.r tsq. he being duly authorLed to re 

To tl"'s conviction the followinffobiections 

o«M which .C '''' '^".^ "** «Vom«^io» o/* 

Second.-.That by the 2d Geo. J f c 3G 

there ,s an eicpress mode of proceeduS 

pointed out, and which must be //Wc/zS 

pursued; and by the statute a warrant s 

expressly required to be issued. ' '" 

witness in support of the action -aid Sm 
t^ormaUon Juiving been orii^iSgTvl t" 
suet magistrate, under the circuml?ncTs of 

Judge ; whereas he did sit as Judie^anj 
was one of the convicting magiHrate!Z 
appears by the record. ""^^setates, as 

Fifth,~That the evidence was ina.iffi^- * 
to support . the convicUoa! Tl e «™fce 

Sixf^,-L.1*H^ tlje record dopa nnf ««* 
ScFentii,— That 

fT*WLfe« J^iM) place laid 




for each and 
iam Ludlow, 
'^m. Meader, 
ddison, and 
'f Greenwich 
Peter fFeston 
orized to re- 
according to 
tt case made 

ig objections 
efendant :— 
summons set 
formation on 
red by the 

. if., C.3G, 
be strictly 

t warrant is 

given, is to 
*eace; and 
the record 
e principal 
^; and the 
^y given by 
isiances of 
flitting as 
fudge, and 
istrates, as 

' of law at 

3tset out 
the name 

tee laid in 



the conviction to show the justices had juris- 
diction over the offence. 

The Court directed that the case should 
stand over till the next day, and then gave 
the following judgment: — 

There is one objection to the conviction, 
which appears upon the face of it, and which 
is fatal ; but, before J notice it, I feel mvself 
called upon, from the peculiarity of the situ- 
ation in which J am placed, to offer some 
preliminary remarks on the nature of the 
case before the Court. Could J feel myself 
authorized to refuse '' ^ interposition of the 
Supreme Court in the manner now sought, 
it would only be changing the face of the 
proceeding, which would, in all probability, 
take the form of an action for damages, and 
be attended with much more expense and 
trouble. Jn England, it is usual, before au 
action is commenced against magistrates, 
to bring their proceedings under the review 
of the Superior Court, for the purpose of 
quashing them if ijjey are illegal ; because 
a subsisting conviction, good upon the face 
of it, however unlawful in fact, cannot be 
impeached in a collateral way. 

The statute 43d George 111., cap. 141, was 
made for the purpose of protecting magis- 
trates after their proceedings might be set 
aside, and is a very beneficial statute to the 
magistrates. Supposing the Court should 
refuse to inc^uire directly into the lawfulness 
of a convictif n, upon what principle of jus- 
tice could it refuse inquiry in a collateral 
action ? Surely, not upon the rule of English 
law, which is founded in systematic justice, 
and disallows the proceeding of inferior 
Courts to be questioned incidentally, only 
because it has provided a direct mode of 
inquiring into their legality. But if the 
Court should first refuse to entertain any 






t, ^ 

^. ' 






proceeding xvhich might be directed imme- 
^iutteiy agamst a subsisting conviction and 

rule of Lng ,8h hw, who should attempt to 

question it in a collateral way. it would be 

antamount to closing the doors against jus- 

ice altogether; for how is a partyfaggr eve^^ 

by an unlawful Conviction, to obtain??d 'ess? 

J.nUulness of the proc^edihgs of magistrates 
I cannot refuse it iriduectll ; and it 3oes 

rZT tha";';i''^^^ ^^"^ ^^P--^- ^^ this 
sland that the magistrates would gain no- 

^ ng by exchanging the present summaiy 

f^Illir^^ «>fefore the Conrt is this: the de- 
iWs I„Tn' *="7';sted by two of His Ma- 

iflhirtv fi '"' ""^ "'/^' '^"^ ^"^^> t»'^ -^"ra 
oi thirty-five pounds, for not complying with 

the requisites ofthe statute 2d Geo II c 30 
sec. 1. which enacts, that in case ^nymlt 
ter of any vessel shall carry any seam^eh up- 
on any voyage, without first entering into^a 

the contSrr'' ^'u^'^""^ »'^^ "«<"••« «f 
t le contract between the parties, and he and 

they signing the same, such masiershall fo I 
tLT'7''^ ^^ ^""^ ^^^'•y ""^^'^ seaman. 
i? mls^f T^rr ^'^^^^^'^ defendant, who 
,Lw I ^*.*?^ ''"^ Comwicrce. had not 
Signed he articles ; and the point for the 
Justice's determination was. whether he had 
11^:^^^'^^^^ them before th/voya^ 

S?L ? ?^ '""^"^^^^ "^^'^ ^^« called tosuS. 
port th^ mformation. deposed, that he had 

tliey were not. at that time, signed by th6 
master, as required hy the statute, It Z ob- 

i«'w* fr- S"""^ "Poo j"tt» to swear to the 
Jaw. It w true that evidence as to law catt- 


ected immr- 
V id ion, and 
rty upon the 
I attempt to 
it would be 
against jus- 
y, aggrieved 
ain redress? 
% into the 
magisi rates, 
tnd it does 
nee in this 
lid gain ho- 
lt summary 
£ion against 

lis: the de- 
of His Ma- 
cd the sum 
tilying with 
». II.,c.30, 

any mas- 
earneh up- 
ing into a 

nature of 
md he and 
r shall for- 
1 seaman, 
dant, who 

had not 
It for the 
er he had, 
6 voyag6 
£d to sup. 
t he had 
and tfidt 
id by th6 
ft is 6h- 
fond the 
r to the 
law can- 


not properly be received ^ and that a con- 
viction founded on such evidence alone, 
must fail; but if a witness swears to facts 
sufficient to warrant a conviction, I i\q not 
think his giving his opinion upon the law, 
would invalidate the other parts of his testi- 
mony. If the case had rested her^, I shou|(| 
not have thought the objection material ; but 
the words used by the witness are import- 
ant, and relate to a circumstance under 
which the conviction was res^Uy founded. — 
!^y not signing ♦* as required by the statute,'' 
the witness intended that the articles were 
not subscribed ; for when the articles them- 
selves were afterwards produced before the 
Justices, the conviction goes on to state, 
that they were then found to have the ipnas- 
ter's name ** subscribed thereto ;" and the 
witness being called again, desposed, that 
the defendant's name, " now subscribed to 
the said articles, was not so subscribed the 
preceding day, when the aforesaid articles 
were produced in the iJupreipe Cour(; ;" and, 
thereupon, the defendant was convicted. 
The master, in his affidavit in support of the 
present motion, swears |hat he filled up the 
agreement, and that liis name, which is in- 
serted in the body of it, was signed by him- 
self, and is in his own haud^writing, it is 
not denied, or rather it is admitted, and is 
within the knowledge of the Cpurt, that this 
was the fact, and that the defend an tV name 
was written at the beginning of the articles 
in the way which is usual, before th,ey wer^ 
produced in the Supreme l^oi^rt, and as 1 
^ni bound to presume, for there is nothing 
charged to the contrary, jbtefore the vessel 
proceeded on her voyage, it appears, then, 
that the Justices did u,ot confjne thf^n^selvei^ 
to the questiop, whether t^^ mas^r had 
signed the ai:tic?i:?5 ovnot, but they convicted 







'[■ I 





Iiim for not signing them in a particufar 
place ; ttiis was going a step beyond tiie 
statute, and making that an offence which 
is not an offence against the law. The sta- 
tute only requires that the agreement shall 
be signed by the master before he proceeds 
to sea. The statute of frauds in the same 
manner requires, that certain agreements 
should be in writing, and signed by the par- 
ties to be chained therewith. The place of 
signature, under this statute, which regulates 
r.Ii the grea<; contracts in the kingdom, has 
never been considered essential to the vali- 
dity of any instrument required to be signed ; 
on the contrary, if a party's name be inserted 
in the body of the writing, with a view of 
giving it authenticity, it has been expressly 
held by the Courts to be a sufficient signing 
within the statute ; and it has been so held 
even in ca«es where a blank has been pur- 
posely left at the bottom of the instrument 
for signature, and the party has omitted to 
fill it up. [See the cases collected in Ro- 
herts, on/rauds, 122.] 

The same doctrine had before been re- 
cognized in respect to the signature of wills, 
and is, I believe, a rule o^ the civil law. The 
analogies of law bear me out in holding, 
that if the master of a vessel sign the agree- 
ment with his men, before he proceeds on 
the voyage, the place of signature is not 
material. The printed form has no blank 
for the master's subscription ; the place and 
time of entry, rate of wages, &c., are only 
applicable to the seamen. The master's 
contrar*^ is with the owners, personally, not 
on the credit of the ship, and is never set 
out in the ship's articles. There is nothing 
in the nature of the thing which makes the 
place of the master's signature material ; if 
he signs, that is sufficient to bind him to the 



1 porticufar 
beyond the 
fence which 
. The sta- 
ement shall 
le proceeds 
in the same 
by the par- 
lie place of 
:h regulates 
ngdom, has 
Lo the vali- 
> be signed ; 
be inserted 
a view of 
I expressly 
lent signing 
een so held 
3 been pur- 
omitted to 
:ted in JR^- 

re been re- 
re of wills, 
illaw. The 
in holding, 
the agree- 
roceeds on 
tiire is not 
s no blank 
! place and 
;., are only 
e master's 
mally, not 
never set 
is nothing 
makes the 
aterial ; if 
him to the 



agreement, and to satisfy the statute. 1 am 
of opinion that there was no corpusr delicti in 
this case, upon which the Justices could 
found any conviction : by their own show- 
ing, they have fined the defendant for that 
which is not an offence against the law. 
Their proceedings are, tlierefore, annlHty, 
and roust be set aside. 

There have been many other objections 
raised against the conviction, but it is unne- 
cessary to go into them. Before 1 close 
the observations of the Court, however, there 
is one which it may be essential to add, and 
which I desire may be clearly understood. 
It is this : that whenever a conviction has 
been mbstantially right, this Court will not 
disturb it upon the ground of mere irregula- 
rity of form. In England it is observable, 
that the strictness with which convictions 
by magistrates were formerly regarded, has 
been a good deal relaxed in latter years ; 
and th« statutes passed for protecting ma- 
gistrates in the execution of their office, are 
framed in the same spirit of liberality, i do 
not think 1 shall go beyond that sound 
discretion which is reposed in the Court, 
under the act which directs it to apply 
the laws of £ngland> so far as. they may 
be applicable, to this island, in holding that 
the same d^ree of technical strictness which 
is observed at Westminster in examining the 
formal parts of a conviction, is not applica- 
ble to Newfoundland ; and that every con- 
viction in which justice has been, in fact» 
done, ought to be supported by the Court, 








l\ ) 

The (Cufltom 
fouod by ibe 8p«" 
oial Jury in (he 
case of MeehoH ▼. 
Brine, [ante p. Gj 
must be takeu aub- 
ordinale to Ibe sta- 
tute of limitations : 
and a Doo-claim 
for six years is, 
consequently, a 
good pl«a in case 
of an action upon 
a bill of exchange. 



Haycs against John N»ave and William 


i^iCTION to recover thesnii) of £C1 5^. lOd, 
for principal and other charges upon a pro- 
seated UiU of exchange. 

In November, 1U06, a bill of. exchange 
vr«9 draiKnby the defendants in favour of 
£:/lmond Walsh, for ;£S3 15g. on Dartmouth^ 
which bill, however, was never sentifor ward, 
or put into circulation, hut retained by 
WtUah . .until > Ust year, rwhen he endorsed it 
to (plaintiff for a full consideration. , : The 
bill i hawing been transmitted kstfall to 
Dartftiouth, was returned under protest, and 
this action was brought to recover the 
SHUDunt, under the alleged special custom of 
this island,, that time does not run against a 
biU of ) exchange. The defendant relied 
vpon the statute of limitations, and complain- 
ed iof the hardship of being called upon to 
pay abill which bad been drawn more ihan 
fourteen years ago, andwas fraudulently en- 
dorsed to < the plaintiff last year^ when 
JVahhf the payee, had become.indebted to 
the defendants, upon subsequent dealings, 
in a niich larger amount than ;the bill now 
sued for. 

Per Curiam^ Without going into the pri-r 
vate circumstances of the caSe, Which may 
press with greater; lOr less bardiriiip on one 
sideor the other, it appears to me tliat the 
action is barred by the statute of limitations. 
Which ba^ always been acted upon in this 
Court. 1 am aware that the special custom 
found by the Jury in the case Meehan v. 
JSrine, taken in all the latitude to which the 
language of the verdict nuy be strained, is 
capable of being opposed to the statute ; 
but when a conflict of this kind takes place, 


nd William 

>r£Gl 5s. Wd. 
i.upoa a pro- 
of. exchan;^e 
in favour of 
n DM-tmouthy 
relaiaed by 
3 endorsed U 
ration. , The 
k^t fall to 
' protest, and 
recover the 
ial eustom of 
run against a 
ndant relied 
nd complain- 
died npoa to 
m more than 
idnlently en- 
year, vhen 
ent .palings, 
;the hill now 

into tlie pri-r 
; Ivhioh <may 
dl ship, on one 
me .tliat the 
upon in this 
ecial custom 
le Mee/ian v. 
to which the 
i strained, is 
the statute ; 
takes place, 


J. & W. NCAVB. 


the special custom must give place to the 1B91'. 

statute, upon the first principle of colonial 
laws, which' cannot be repugnant to the po^ 
sitive laws of England. 1 am not rcconci* 
led to<Hho decision which passed the Court 
soon after my sitting here, and which recog- 
nized the custom contended for: two special 
juriigs had found opposite verdicts; one that 
the custom • prevailed immemorially in this 
island, by which bills of exchange on: £ngL 
land might be locked up for an indefinite 
time without imputation of laches f and the 
other, that bills of exchange here were dis- 
charged by the neglect of the holdetf in the 
same way as in England. It was fairly open 
to the Court to set off the two verdicts 
against each other, and consider them a« 
conclusive against a custom which wanted 
that invariable and universal understanding 
which is the essence of usage, and indispen- 
sable to give it the sanction of law. - Bat it 
did appear that a very general practice pee- 
vailed of holding bills' in this island upon 
the faith of the continaed liability of the 
drawers, and that an abrupt decisiol^ would . . ' 
produce a great deal of hardship ; so stands ';; ,, 
the case at present ; — ^though I cannot ubut 
see that thecastom contended for' is. a^ vetj 
bad one, and' in the end must be n^fy^ injuH 
rious to the interests of persons; residing in 
this island ; it has the effect of ultimately 
throwing -the loss'iipon every bad: bill upoa 
them. It would ^>e idle to follovl the drawier 
or prior endorser td £nglandi<and^ue there 
upon an over-held bill. ' iiru 

TheCoufftd in England woultl lavgli at 
our custoiM. - How* i can there, in Ceict^ faiC) « 
local costoM-npoa a l^reign bill o£ exchaa^o; 
an-^ instramentm its very^ nature trankitoi^, 
and fM'miiig «i' contract if hieb is tO' be excK 
tsttted ^t of the<<oaiBir)^iwhcnitiiieifaii^iipi 


II <i I 

•Alii V/..i 


u . 




f. & W. JUbavb. 

Nooember lith. 

The provisions 
•f tbe 49tb Geo. 
nil, cap. 27« in 
favour of •ervaots, 
are cumulative: 
aod do not, con* 
••quenily, take 
away, or ebridgt, 
Ibeir right lo fol- 
low the fish and 
oily onder the lath 
0«o. III. cap. 31, 

cAiEs m vbb supreme court, 

prevajls I Upon every view of the casp, in 
principle as well as expediency, I feel it 
ray Uiity not to allow a bad custom to pass 
beyond the boundaries of law; and I, there- 
fore, hold, that the special custom found by 
the jury in Meehan v. Brine, must be taken 
subordinate to the statute of limitations, and 
tiiat six years of non-claim are a complete 
bar to an action upon a bill of exchange in 
this island. 

LynE\pO¥LE's Servants against X\ie Recciv- 
, ,; ers ofthe Voyage. 

VuASE. -»-X>oy/6 was a planter, and took 
supplies from divers merchants, to whom 
he put off bis fish in unequal proportions. 
At the; okisc of the fishery, the servants 
went into the Sessions GonrI, and recovered 
jiidgments for wages against />o^/e; but be- 
fore exe<iation, process was taken in the 
Supremo Gburt, at the suit ofthe creditors 
of i£%l0, and he was declared insolvent, and 
iiit effects vested in the hands of trustees. The 
propierty of Doyle being insufficient to pay 
the servants, they resorted to their remedy, 
under the 15th Geo. III. (following the fish 
and oil), and demanded their wages from the 
receivers of the voyage. On this day, the 
trustees and receivers were severally sum- 
moned before the Court, and the whole 
case taken up, when tbe Court made the 
following decree : — . < i ' . ; , , 
Mi Ihtfad caseof ^efUMi^ 4* MoUohatCs in- 
4loitency,i the same question wag raised, 
srhether, in case of the insolvency of the 
Apttial iiirer of> tbe servants, the proceeds of 
«ue-2aav7xvsaiss csicns suuuia Qoi pe nrsc 
a|q^lied ia payment of sevvants' wages, an<* 





r the casp» in 
icy, 1 feel it 
itom to pass 
ind 1, there- 
Din found by 
list be taken 
itations, and 
3 a complete 
ixchaDgc ia 

! the Recciv- 

r, and took 
), to \vhoni 
lie servants 
d recovered 
^le; but be- 
aken in the 
be creditors 
solvent, and 
iistees. Tho 
ent to pay 
eir remedy, 
ring the fish 
B;es from the 
iiis day, the 
;rally snm- 
the whole 
<•( made the 

Uohan't in-^ 
iw raised, 
ncy of the 
iroceeds of 
ot be first 
¥ages, un^ 


The Receivers ot 
the Voyage. 

der 49th Geo. III. before the servants could 1821 . 

resort to the receivers of the voyage ? ^ _■ . ■ - 

But the Court held that such statute gave Duyle's Servants 
a cumulative remedy to the servants, and 
did not take away the right which they had 
before of looking to the immediate produc- 
tions of their labour, tiie fish and oil, for the 
payment of their wages. While the afiairs 
of an insolvent are winding up, the servants 
will starve. If they could follow the fish 
and oil when the planter who shipped them 
was solvent, aforlioriy tliey can do so when 
he becomes incapable of paying them. The 
servants are entitled, if they think fit, to 
follow the fish and oil, under the Idth Geo. 
JII. ; and as they have done so in this case, 
the receivers must account with them, 
which must be done in the following man- 

First. — Let balances be struck between 
Doyle and his servants, upon accounts be- 
tu-een them, and such balances carried into 
one aggregate account of sums due servants, 
(omitting any payments voluntarily made by 
receivers, who will have a right to set off the 
same against refunding.) 

Second. — Let the fish and oil received by 
all the suppliers be computed, and an ag- 
gregate account of such fish and oil set out. 

Third. — As the whole voyage is to the 
deficiency, so will each receiver's proportion 
be to the amount he must refund, (giving 
him credit for any wages actually paid as 

In respect to the insolvent estate, it is 
certainly first liable to servants* wages ; and 
1 am aware that in relieving it from this first 
demand, some difference is necessarily made 
in the respective intere8t9 of parties claiming 
upon such estate, it '^ims but just, there- 
fore, that the parties .efundiog sho^ikd be 





nllowed to rlatm the i^muiints resprctivply 
rcfuiulcil OS wages, before any diiim for 
current supiilies. 



November IP/A, 

The Chief Jut- 
lice refuses lo alior 
the ordpr made by 
him, relative lo the 
claims of these ser* 
vaals, on ihe 14th 
of the preaeut 

L. Doyle's Servants. 

"N this day, application was made to 
alter tlie mode of paying servants' wag^ee., 
as ordered on the 1 4th November hsl; when 
the Chief Justice »A\f{ : — 

I do not, upon reflection, think that I can 
alter the rale laid down in this case. Jt is 
easy to frame cases of hardship on one side 
and the other; but 1 must be governed by 
iegal principles ; and I do not conceive J 
have any right to interfere in rights accruing 
before insolvency between different current 
suppliers, who have received unequal pro- 
portions of the voyage. There is no reason 
why one supplier, who is active, may not 
take care to pay himself, and cover any 
probable claim for servants' wages by an 
over-receipt of fish and oil; and if he takes 
the precaution to do this, which it is per- 
fectly lawful for him to do, why should the 
Court frustrate his Vigilance by appropria- 
ting his over-receipt offish and oil, first, to 
the payment of wages, and then call upon 
him to refund in proportion to the fish re- 
ceived ? A case of great injustice may be 
supposed by so doing ; for example, A 
supplies to the amount of £200, and receives 
£300 in fish and otl ; B supplies £50; and 
receives exactly that amount in fisb^and bi!, 
—wages amounting i6 £200 r A'k surplus is 
first appropriated to pay this, which' brings 
the deficiency to £100, of which stim A, -Who 
endeavoured to secure himself by precantimr, 
18 caHed itpon to cotttributte d-7tb9; and 0> 





i diiim for 

who neglected to Rccure iiimself aKninst 
wages, is only called upon for 1-7lli, beiii^ 
tlicir relative proportions of lish received. 
The Court rule appears the best. 


18 made to 
mts* waj^es, 
•Itisl; when 

k that I can 
asc. Jt is 
on one side 
overned by 
conceive J 
its accruing 
ent current 
lequal pro- 
! no reason 
J, may not 
cover any 
i.a:es by an 
if he takes 
it is per- 
should the 
11, first, to 
I call upon 
the fish re- 
ice may be 
ample, A 
id receives 
I £50; and 
sb^and bi!, 
linJA, "Who 

The CiiURCH-wARDiiNs against John 

.Action to recover one pound> as an as- 
sessmentyor^cw rent for the last year. 
, Defence* That tlie pew was not taken 
l>y di^endant individually^ but Jointly with 
fVarrcn and lioden^ and that each party 
paid one-third ; and th»t 4ho church-war- 
dens have neglected to repair the glass in 
the window opening from the pew occupied 
jointly with defendant, although they have 
been called on and required to do so. 

The proceedings of the vestry were laid 
in evidence, from which it appeared tliat 
certain expenses were incurred in the re- 
pairs of the cbnrch ; .that there was a meet- 
ing of the pew-holders convened ui the ve8<- 
try, where the necessary repairs, were sub- 
mitted, and estimates produced, and aj)- 
prpved by the meeting then present; auil 
that it is to cover such expends Uiat.tbe 
assessments are demanded. 

The Court considered that the contribu- 
tions to, the church were conventional^ they 
could not be demanded as rates, properly so 
speaking, but as the proportions of a general 
expense incurred for the purposes of the in- 
stitution, for which every holder of a pew, 
or interest, in the church, had impliedly 
made himself liable. When the church was 
built, it was, of course, intended by ihosc 
who built and held an interest in it, that it 
should be attended, and kept in necessary 

yovemher 19/A. 

Th« cliiireh-war^ 
deiiH may reouver 
from th<> owners uf 
ppwsH fairpropof 
lion of tlio eypeiiM 
inciirrpil in (lie iii>- 
coBsary and indis" 
ponsnMo repairs of 
Ibo cburcli. 






n^ceVraod the S^ at a geaerui 

reimbursement nn^^* ^"^"^ "* *^^^"'^ "«»»t to 
peur-hoWeT wl' nrnn ^^ "^^r^*" from%acli 

08 for money 'i^i^Z''^'' ^^ **"/!; ^?P*»««» 
expenses must h« ii^?^''''*^' »»"* the 

r •, ur luey crynnot be recovered. 

DeeenOer llik. 

Bail money is 
■«y«ol, fine, to 
Ibo payment of 
^•g««. and afior. 
wards to aHppliei. 

Sabiuil Codner a^a,„,/ Baine, 
Johnston & Co. 

circumstances •— *"® allowing 

P^rflaS^'l'J-ffi ,- eye. or 
againrt him for (he amount a^d i"''?"'™' 


"Pon deVndrC^n "'r J?' T'^ 
certain sums due bi-tK. ,i' , " '^F**' 
♦ained by them on L.i "e"'*"*. and re- 

Cio/*. '*"• *"' •'»" supplied by 

hateaett^:t'r'Al! '"'^ 
contended tbev retain^ ^^i ^^ ^^^^^' and 


»ppcar«i that .lieyhadfu™Sd"4:j"j;,l| 


oiind themsclvcx 
•cli repairs an<l 
*lio has piirciia- 
poKseflStid of, a 
ow, theoh*i^>. 
'I when there- 
on at a geaerai 
InciirrrJ hy the 
a clear right to 
3ver from each 
^ such expense, 
ended; but the 
Y ttecessary and 
be recovered. 

f Baine, 

"ount of cer- 
the following 

Be C/iafe, of 
*d judgment 
id took out 
«ng sufficient 

was served 
IS is .M^ged, 
lers, and re- 

of account 
supplied by 

9, that they 

forth, and 

)ney to sa- 

>m for cur- 

'• WM stated 
iy which it 
Chq/b with 


articles during tlio winter, hit in tlie l>egin- 
ning of the fisiiing-seuHon they hud discon- 
tinued their supplies, and, by way of securing 
the debt then due, took nn assignment of 
}m boat, which they afterwards let to him 
again on hire for the ensuing season. 

It was further stated l)y the defendants, 
that they had supplied Chafe with the un- 
derstanding, that the bait-money due by their 
dealers was to be retained by them in sa- 
tisfaction of their debt, and without such un- 
derstanding they would not have advanced 
supplies, or let their boat on hire. 

The Court determined, that the articles 
furnished by defendants before the fishing 
season commenced, could not be considered 
as supplies for the fishery. Where winter 
supplies were issued, and continued during 
the fishing season, the Court would not se- 
parate the account, but consider all as 
supplies ; hiLcaliter where the supplies were 
discontinued before the fishery began. In 
regard to the claim for boat-hire, it was, cer- 
tainly, to be regarded as a supply in itself, 
but it was o( a. peculiar character^ and would 
not otherwise take the case out of the gene- 
pal principle so often laid down. The de- 
fendants were, certainly, entitled to retain 
what proceeds of the fishing voyage might 
come into their hands, to the amount of the 
hire of the boat. It was objected, that the 
defendants had not notified plaintiff of their 
claim upon the boat, agreeably to the rule 
laid down in JBaine^ Johnston Sf Co. v. Al~ 
sop, 14th November, 1821 ; but this case 
differs from that, inasmuch as there, the party 
sought to recover boat -hire from the' receiver 
of the voyage; here, the party only sought 
to retain to the amount of the boat-hire, and 
his right to do so fell within the principle 
frequently laid down by the Court, that it 





Bainb. JomN' 
broN ft Co. 




Baine, JohN' 

T> N & Co, 


ri!i ""' u^J'i!""** different current suppliers 
T;!^ "i'?u * ^''''^ received different propor- 
tions of the voyage ; it would only call upon 
them to contribute to the payment of wages, 
m proportion to the value they might have 
received. All fish and oil were made, in 
the first place, liable for wages ; and where 
they could not be followed in specie, they 
must be traced through their representative. 
Bait-money was of this description : it was 
subject first to wages, and next to current 
supplies ; and as the plaintiff in this action 
had paid all the wages, he was entitled to 
call upon the defendants, to contribute a 
ratable proportion of the bait-money he had 
received, towards the payment of wages 
earned in the bait-boats. ° 

f i' ! f 

December 15th. 

Although a com* 
mission of bank- 
ruptcy in Eoglaod, 
ivilt not necessarily 
supersede a decia« 
ration of insolvency 
in this country, 
yet, if under the 
particular circuni> 
•lances of a case, 
it shall appear that 
the olainis of the 
creditors, general- 
ly, may be most 
satisfactorily ar- 
ranged and ad- 
justed in England, 
the Supreme Court 
ivill consider that 
a good ground for 
superseding (he ia> 

Assignees of Stabb, Preston & Proivse 
agmnse Trustees of Sta bb, Preston 
Prowse & Co. * 

e.,,.^^^. ^?^ ^" application to the Court to 
supersede the insolvency which had been 
aecjared in this case, and to cause the pro- 
ceeds of the insolvent estate to be handed 
over by the trustees under the Newfoundland 
insolvency, to the assignees under the Eng- 
lish comission. ° 
Per Curiam. This case is peculiarly cir- 
cumstanced, and, in some respects, has 
imparted its character to the proceedings of 
the Court. It may be necessary, therefore, 
to explain the reasons which have guided 
the Court in the course it has adopted. 

On the 28th of June, process of attach- 
?rA 'd^ awarded against the effects of 
Atabb, Preston, Prowse 6r Co.. an evtPn^.'ve 
traumg firm ia the island, with the view," as 


iirrent suppliers 
ifferent propor- 
onlycall upon 
ment of wages, 
hey might have 
were made, in 
if ; and where 
in specie, they 
ription ; it wa^ 
ext to current 
rin this action 
van entitled to 
o contribute a 
money he had 
ent of wages 

N & Prowse 

) the Court to 
ch had been 
:ause the pro- 
to be handed 
ider the Eng- 

eculiarly cir- 
espects, has 
roceedings of 
y, therefore, 
have guided 
s of attach- 
le effects of 
in extensive 
the view, as 


it \ronld seem, of leading to a declaration 
of their insolvency, and preventing an undue 
preference amongst the creditors. At the 
return of the w rit, the agent who had been 
left in the management of Slabb, Preston, 
ProwseSc ^o"s. concerns, attended Court, 
and admitted, that the available property of 
the house was not sufficient to' satisfy the 
demands against it; and prayed, that as 
none of the partners were in Newfoundland 
when the attachment was sued out, farther 
time might be allowed them to appear. The 
principal creditors, who were also in attend- 
ance, pressed an immediate declaration of 
insol vency . The Court granted three months 
further time, and enlarged the writ of attach- 
ment, intimating that it would authorize 
such persons as might be nominated at a 
meeting of creditors, and approved by the 
Court, to carry the attachment into effect, in 
such manner as might appear most conducive 

to the interests of all parties concerned. 

The writ of attachment is a peculiar process 
unknown to the common law ; it is likq 
the proceeding in rem of the civil law ; and 
places the goods attached, in the custody, 
and under the control, of the Court. It is 
usually executed by the Sheriff; but as it 
was pretty evident from the beginning that 
the case would terminate in insolvency, it 
was deemed more expedient to conform the 
proceedings of the Court, in the first in- 
stance, to the course which it was probable 
they would ultimately take ; and, there was 
the less difficulty in adopting this course, as 
the Judge is expressly enabled by the sta^ 
tute, to perform every ministerial act Of th0 
Court by the hands of such persons as he 
may deem proper to appoint. Trusteeis were 
„^v,v*xM*i^:jr 9|7|fvit»i>cu, iv uiiaca ana DQid 



■Assigneps of 
Stabb, Pres- 
ton, and 


Trustees of 

Stabb, Pres> 

TON, Provtsb 







Assignee* of 
Stabb, Pres- 
ton, aud 
Trustees of 
Stabb. Pkbs. 
TON, Prowse. 
& Co. 

CASES IN This supreme Court, 

the effects of Atabb, Preston, Prowse A- Cd 
subject to the direction of the Court. ^ 
At the expiration of the time which had 

tn Court, and it being made to appear that 
ail the partners had been duly apprized of 

v.?i^7T' ^^^T^ *^^"^' ^'»« CowrJ^ concei- 
ted that everything had been done which 
could reasonably be expected to be done to 
satisfy the intention of the statute, and de- 
clared Stabb, Preston, Prowse ^ Co, insoU 
vent. J do not scruple to say that the Court 
Bad anxiously looked for the appearat;. e of 

in n^Jffh '.""'*"' ^^^ English commission, 
Jn order that any question of a conflicting 
nature might be raised before the case had 
pone the length of an actual declaration of 
insolvency ; but m that expectation it was 
disappointed, although the bankruptcy had 
^onJl ^uT '° England more tha/ two 
months before Not feeling satisfied that 
the Court could suspend its proceedings any 
IK""' J' *»ecame necessary either to give 
the particular creditor the benefit of his 
judgment, or to declare the defendants in- 

iTc 71;-/^/^'"^'^' ^" P^^*>^« ^-'e put 
O.L ^^^'^^'l *^ «"e"d Court on the 8th of 
October, and the agent for the defendant, 
bemg examined, and stating, as before that 
o'nf '!k ^^ Ws Principals^^ere iSc Ln 
to pay their debts, the Court proceeded 
formally, to declare them insolveSt ^ ' 
A question has been raised, which mav 
properly be referred to this stagi of the case 
ivhether the defendants could lega ly be de! 
claredmsolvent in this island, none of them 
being present, or personally within the ju- 
Wdiction of the Court at the time? and it 
whink? ?^"^P«^d.*o an act of bankruptcy 
MThich, bemg penal m its conscquencfii, LZ 
uoi be committed by inference, urfofli^ 


E Court, 

», Prowse ^ Co. 
e Court. 

time which had 
i»8 again moved 
B to appear that 
uly apprized of 
e Court concei-^ 
sen done which 
d to be done to 
tatute, and de- 
vse Sf Co. insol- 
y that the Court 

appearajwe of 
sh commission, 
of a conflicting 
e the case had 

declaration of 
fetation it was 
ankruptcy had 
ore than two 

satisfied that 
oceedings any 

either to give 
aenefit of his 
[Jefendants in- 
ties were pub- 
: on the 8th of 
he defendants 
IS before, that 
re insufficient 
rt proceeded, 

i, which may 
?e of the case, 
egally bede- 
ithin the ju- 
time ? and it 

uences- can- 
:e, urjfollow 


upon the act of an agent ; but the cases 
rnkrlr^"^'- ^". Wand, the tcL of 
W n?^iK^ r '^''^''" ^^^"^'^ «^ts, the do- 
ing of which IS necessary to brin- a partv 

Newfound and, the mere inability to pay 
twenty sh.lhngs in the pound, makes \hl 

fife L/r L''"l' ' '^' ^^'' '^f insolvencv i^ 
nntf ^1 bankruptcy. The law has 'ap^ 
pointed the Courts to inquire into this fact 

attllr •' ',?^^^'^^« '^- The process o 

facHsTn I '' *^^ '"""r ^'^'•«"g'» ^^hich the 
Jact IS to be ascertained bv the Courts The 

hnt f,"f ''^'^^f ^PS m the course of inquiry : 
bu the awarding of attachment is the first 
judical step to which all the subsequent 
proceedings are referred. Now, the "vH 
may go against the goods of an absentee' 
^deed ,t seems intended to apply to cases 
where the party cannot be personally served 
J^Kh process. Jf the goods attached are 
insufficient to pay all the debts, the partv 

fo'unT?n Tf'""'' ^"PP«^^ he'cannS? b^ 
to stand ""f,^'-^« ^^^'"•"ation. is the Court 
10 stand still, and see the estate wasted 
however satisfiecl it may be of his inloTvel: 
cy ? If he attends and denies his insolven 
cy, It cannot prevail against the fact : shaM 
h s absconding suspend the law ? The firs 
objec of every system of insolvent aw is to 
provide for the interests of creditors It is 
the express object of our law which di 
Clares the prosperity of the trade andlshe* 
ries of Newfoundland to depend i„ t 

d^tei^ '"^'■'^"^ Of thisTo'um f i^r;: 

ducted by agents, whose princioals L I_ 

^Zl. ♦H''/'' "»»•»*«'«» as a general propo': 
Wtion, that persons engaged in trade fn th?s 



Assign res of 
Stabb, Pres^ 
TON, aad 


Trustees of 
Stabb, Pres- 
ton, Pkowsb 





^■■icn«M of 
Stab^, Prbi> 
TON aod 


Tru»ieM of 
5tabb, Pkr»< 


A Cow 


Miami, and becoming insolvent, cannot be 
declared so merely because their bodies 
may not be within ihe corporal touch of the 
Court, would be to place one-half of the 
property in this island out of the laws of 
the island. It appears to me, that wherever 
the goods are within the jurisdiction of the 
Court, they are liable to be attached ; and, 
wherever the goods so attached, are found 
to be insufficient to pay the demands of the 
creditors, it is competent to the Court, upon 
being satisfied of the party's insolvency, lo 
declare the fact, and take order fordistribu- 
tmg the insolvent s effecls according to law. 
Entertaining this view of the law, I am of 
opinion, that the declaration of insolvency 
in this case was lawful. 

But it is contended that the bankruptcy 
oiStabby Preston 4 Prowse, in England, 
vested all their estate and eflects in this is- 
land, in the assignees under the English 
commission, and virtually superseded any 
proceedings under the insolvency in this 
island. This is a very large question, but it 
IS not a new one in this Court. 1 have al- 
ready had occasion to express it as my opi- 
nion, that where a person engaged in the 
trade of Newfoundland, becomes bankrupt 
m England, the creditors, in respect of New- 
foundland transactions, might come into this 
Court, and cause such person to be declared 
insolvent, with the view of having such of his 
effects as might be situated in this island, 
distributed according to the law of the is- 
land (a). I do not presume to question the 
decisions which have been made at West- 
minster, {b) although I humbly conceive that 

(fl) Crawfordf tf Co't. ioulTeooy, 31it aaoumy, igi8. 

. ^Z-slT^I'J^' ??••• J«l»'«'y. I'W. Chan. Jolkt 
- ^»st.t€:u., auu StpdnihieM r. Seaian, 83d No». IWfe 


nt. cannot be 
their bodies 
il touch of the 
ne-half of the 
f the laws of 
that wherever 
diction of the 
ached ; and, 
d, are found 
manda of the 
e Court, upon 
tisoivency, lo 
r fordistribu^ 
•I ding to law. 
law, I am of 
of insolvency 

in England, 
ts in this is- 

the English 
erseded any 
!ncy in, this 
estion« but it 

I have aU 
t as my opi- 
gaged in the 
es bankrupt 
ome into this 
I be declared 
g such of his 

this island, 
w of the isr 
[uestion the 
e at Westr 
onceive that 

Faouaiy, 1Q18. 
4. Cbah. Jdlkt 
4 Nov. vtm 
U. Wmwick, 


some of the arguments of t.ic judges in the 
cases alluded to, have gone too far— much 
further than can be supported upon sound 
universal principle, and, indeed, than the ca- 
ses themselves will support (e). When it is 
held that a British subject, living within the 
jurisdiction of British laws, shall not be al* 
1 wed to do any act which may tend to de- 
feat these laws, 1 can fully understand and 
follow the doctrine ; but where it is said that 
he cannot do so, because the personal pro- 
perty of the bankrupt is everywhere subject 
to the law which governs his person, I 
must confess that my industry hos hitherto 
been as unsuccessful in endeavouring to find 
such a principle of universal law, as my un- 
derstanding has been to be convinced by the 
arguments upon which it rests ; the proviso 
^yith which it is qualified, viz.. that it is ope- 
rative only so far as it may not militate 
iagainst the particular laws of the country in 
which the property may be placed (</), 'ap- 
pears to me to destroy the only value it can 
have as a principle of universal law ; to have 
cflect, it should overreach every municipal 
regulation which might interfere with the 
rules of equal justice sought to be established 
by it. The bankrupt laws of England are 
sufficiently operative in themselves,to prevent 
an English creditor from evading the spirit 
of the law by resorting to foreign tribunals; 
neither can I feel the force of the distinction 
between personal and real property, as the 
ground-work of a general principle of insol- 
vent law. In most countries where a sys- 
tem of bankrupt law is admitted, the bank- 
rupt's lands as well as his goods are liable 
to the payment of his debts. Why should 

_(c) Sea tha areuiaant of Lord hmghborwoh in SlMm, 
(d) Phimp$ T. Umtcr, 2 II. B. 402. 



Starb, Frks. 
TON, and 


Trusteips of 
Stabb, Pres- 
ton, Prow3k 
■& Co. 




Assignees of 

Stabb, Prbs< 

TON, and 

Prows B 


Trustees of 
Stabb, ^rbs« 

TON, ProwSS 

& Co. 




not land follow the law which governs the 
person of the debtor, and pass under assign- 
ment of his estate ? Trade, with its varied 
sources of credit, and extended ramifications 
of contract and liability, is as fixed and im- 
movable as legal estate; it is alike the 
subject of real provision, and governed by 
laws and usages which virtually enter into 
all its engagements, and form an implied 
and essential part of all its obligations. The 
creditor who contracts upon the faith of such 
laws, has not only a right to the benefit of 
them in the interpretation of his contract, 
but, 1 think, to have them administered at 
the locus in quo — the place where the con- 
tract was entered into, and where the law 
which governs it prevails. Abstract rules of 
justice should be framed with reference to 
the rights of parties : where the disposition 
of property depends upon the mere volition 
of the owner, such as the disposal of an es- 
tate by will, the personal domicile of the 
owner may afford a fair rule as to the dislri-. 
bution of his estate ; but where the rights of 
other parties, as creditors, are concerned, 
the interests of such parties should be first 
consulted. This resolves the question be- 
fore the Court into what it really is — a ques- 
tion of mere expediency, as to the best mode 
of distributing an insolvent's estate, with 
reference to the rights of those who are 
entitled to it. It is not, as in the cases cited, 
a dispute between creditors, inter se^ upon 
conflicting claims ; but a question between 
the creditors of an insolvent estate, as to ths 
best mode of. effecting a common object, 
whether the interests of the body of creditors 
will Ibe best served by proceeding under in- 
solvency in Newfoundland, or by referring 
all parties to £ngland. 1 am not aware of 
any law to prevent this Court from labouring 


: couBT, 

cli governs tlie 
I under assi^n- 
vith its varied 
d ramifications 

fixed and iin- 
t is alike the 
1 governed by 
ally enter into 
rm an iniplied 
gations. The 
efaitii of such 

the benefit of 
I his contract, 
Iministered at 
here the con- 
rt'here the law 
stract rules of 
h reference to 
lie disposition 

mere volition 
osal of an es<- 
micile of the 

to the distri^ 
i the rights of 
re concerned, 
liould be first 

question be- 
ly is — a ques- 
the best mode 

estate, with 
)se who are 
e cases cited, 
iter se, upon 
tion between 
ate, as to ths 
imon object, 
y of creditors 
tig under in- 
' by referring 
ot aware of 
om iabouring^ 


to the same end as the High Court of Chan- 
cery ; indeed, it was formerly the practice 
of that Court to support two commissions 
against the same person, at the same time ; 
the principle of mere convenience upon 
which that practice has been changed, may 
require a simultaneous proceeding to be 
continued here ; it is merely a question of 
convenience, with reference' to the rights of 
creditors. In the case of Crawfords ^ CV*, 
insolvency, the eflects had been partly dis- 
tributed, and divers acts had been done by 
the trustees which appeared to me to re- 
quire the Newfoundland commissions to 
be continued. In this case, nothing has 
been done but collecting the estate ; and as 
the insolvents are all in England, and their 
concerns interwoven with a great number of 
collateral partnerships, all of which centre 
in England, it does appear to me that jus- 
tice will be most effectually done by direct- 
ing the proceeds which have been realized 
in Newfoundland, to be transferred to the 
assignees under the English commission, 
upon security given to the Court to pay, in 
the first place, all preferable claims for ser- 
vants' wages and current supplies, and in- 
ferring all other creditors to England. . 


The Appraisers under the 1st Geo. IV., c' 
51, against Patrick Morris. 

1 HfS was a summary application to the 
Court to compel defendant to pay the 
amount of assessment for indemnifying par- 
ties under act 1st Geo. IV., cap. 61. The 
sum assessed was £24 0*. Orf., being one- 
and-a-half per cent on £1,620, 
The defence was, first, that plaintiffs had 



Assignees of 

Stabr, Prbs« 

TON. aod 



Trustees of 

Stabb. Prfs- 

TON, Prowsb 

& Co. 

March Qth, 1822. 

Every deicrip- 
tioo of ioUrest in 
lands and houses 
in Si. Jolin's,seems 
liable to assess^ 
men! under the lit 
Geo. IV., c. 51. 







111 ' 


not shown how, or upon what grounds, they 
called upon defendant to pay the above 

fJIITi'i J' '''^''^ required that plaintifls 
Bhould produce then- books, showing the 
rates upon which the assessment wasfound- 
\ }l? . . ''® ^^^^ ordered to be produ* 
ced. Plaintiffs stated, that entering upon 
the grounds occupied by defendant, they 
placed It at a supposed value, with reference 
to the general value of houses and other 
property situated in St. John's, of which 
they assessed each person holding any pro- 
perty, whether leaseh.'d or residuary ac- 
cording to the supposed value of such pro- 
perty or interest. The defendant contended, 
secpndly, that tenants holding under leases 

?wV'^ ^'^ °V^"'' &^- a'-e not liable 
that the act must be held to have been ope- 
rative at the time that the first measures 
^ere adopted, although it had not really 
passed ; -at any rate, that as it has a retro ^ 
^ecttve operation, the Appraisers should 
have looked at the property as it actually 
stood immediately after the fires of 1817. 
the streets being then widened, and the ad- 
ditional value derived therefrom actually 
paid for by the tenant, in the increased rent- 
—argues, upon general principles, that as the 
remuneration was for those who should sus- 

lt!f T ^^S'"'""'^' '° *^^ proprietors whose 
ground and houses were rendered more se- 

to th^HJv"'^'^' '?°"^^ P^y ^» proportion 
to the additional value conferred ; but that 
8uch value alone generally derived to the 

landlord alone ought to pay; and, in support 
of his position, puts the case of vacant 
ground at the present day assessed as vacant 
ground, so that if a tenant who had lain by 
were to build to-morrow, he would not d4 
anything for the house so built; why iheo 

ij I 


i grounds, they 
)ay the above 
that plaintifls 
, showing the 
ent was found- 
d to be produ" 
entering upon 
fend ant, they 
with reference 
ises and other 
in's, of which 
Iding any pro- 
residuary, ac- 
e of such pro- 
mt contended, 
under leases, 
re not liable ; 
ive been ope- 
irst measures 
ad not really 
t has a retro - 
aisers should 
as it actually 
ires of 1817, 
, and the ad- 
orn actually 
creased rent : 
OS, that as the 
should sus- 
rietors whose 
•ed more se- 
n proportion 
ed; but that 
!rived to the 
ends that the 
d, in support 
! of vacant 
ied as vacant 
had lain by 
?ld not pay 
why, iheo, 






should those tenants pay a contribution who 

may have happened to build before the ap- _ , 

praisement ? — that the landlord alone has TheAppRAisBRs 

property in the ground, and houses built on 

it; it is generally set at rack rent: — why 

should a tenant who pays Ihe full yearly 

value of the ground, and has, consequently, 

no assessable interest, pay anything towards 


Upon the whole, Mr. iHorm'5 view of the 
question seems to be, that when the town 
was destroyed, and measures were rendered 
necessary to secure it against a future cala- 
mity of the same kind, that certain ground, 
then all being vacant, was required to be 
taken for the security of ground in general ; 
it was like a waste, and all was to begin 
de novo ; as the ground became permanently 
more valuable for the security afforded it, so 
the ground should be assessed to pay for 
such security ; building then, or thereafter, 
were accidental circumstances, which should 
not be taken into account. A tenant might 
have built before the assessment, or the day 
after it was made, and, in either case, he 
ought to stand upon the same footing ; but 
not for the first to pay, perhaps, on a house 
assessed at £2000, and the other nothing ; 
especially that the measure of widening) and 
leaving breaks being adopted before leases 
of 1818, &c. the ground derived additional 
value, which it ought to pay for. 

Appraisers contend that they could not 
enter into such distinctions. The security 
afforded was like an insurance ; wherever a 
man had an insurable interest he must have 
paid 10 have such interest insured. The 
value of the property had been graiduated 
with reference to the interests of parties,, 
gathering puch interests frora proofs of title 
and tenure. 




If 1 


ne valu^ so appraised shall be^paid ly a 
the proj,r.etors of houses, tenemelits, lots an 

Sl J^I.n''^^''-^""*''!.^^'"^ ^'"""»» the limits of 
'it. Johns m such proportions, with refer- 

therd.^' '^.t '''"? o^tLir several interests 
therein, as the said appraisers shall appoint. 

are, who are the propneto;>j? Havethev ih.> 
interest assumed by Ihe appraisers .nSnff 
their assessment ? Jf they have any imeresf 
capable of being appraised and ass/ssed! the 
quamum aftxed by the appraisers is no ex! 
aminable m this or any Court ; it is final and 
compulsory upon the partie;. Defendant 

plated by the Act are landlords; that the 
Act must be presumed to have reference to 
rights existing: at the time at which it be'i^s 
to operate, VIZ., from the first laying out of 
tbe streets in June, 1818 ; but the Ac?sDe 
oficaly makes houses and tenen e„tt HabPe 
^d although the words - with reference to' 
^e value of the several interesU of proprie^ 
Sr JJSE.'^ "^^'l"^ interests, accSg"^ 
SLT^ '^'^'**'^*^ of t^e ground, yet 
^«y »J«P aPP'y to the respectivf interests of 
/WW, and tenants ; in this sense the ap^ 
praisers have taken it, andtheC^owr^inclinL 
• to follow them. 1 must lay out cf the cas^ 
all considerations derived frJm the addftional 
«ntecharged by landlords, upon the st S 
taTT'f ^^""^'^^^^ in^rebuilding fhe 
JJTI^ jT""''^."*'''^^^«^"« of proper! 

SLilfL d**y^ ""'.^ ^^ clecline'^ofthe 
tr»dlo-4he delay m the passing and trans- 
?»tt«ng of ike Act of Arii^rmpT.* to !h^ 
»iand. The Act was framed upii troudl 

If .' i' 



— Act enacts 
I taken for wi- 

appruised by 
[•pointed, and 
e paid by all 
nents, lots and 
n the linnits of 
8, with refer- 
veral interests 
shall appoint. 
f can entertain 
Have they the 
era in making 
e any interest 
assessed, the 
ers is not ex- 
it is tinal and 
tors conlern- 
ds ; that the 
f reference to 
lich it begins 
laying out of 
the Act spe- 
nents liable ; 

reference to 
«of proprie^ 
according to 
ground^ yet 
i interests of 
5nse the ap* 
our4 inclines 

cf the case 

e additional 

the strength 

uilding the 

B of proper- 

:line of the 

' and trans- 
ant' #n *Uia 

wn broad^ 


general principles, with reference to the 
whole society. The fires of 1817 and the 
following years, had destroyed, not the 
ground, but the buildings, and a large pro- 
portion of the merchandise, in St. John's : it 
was to guard against similar destruction that 
the law was passed. Every man who had 
property to lose by a fire, was deemed inte- 
rested in preserving it from fire ; and as the 
means of preservation, certain spaces of 
ground were left to be paid for by all who had 
some interest in the town, some houses to 
be guarded from tire, or some ground to be 
rendered less valuable by its devastations. 

It might be argued that ground could not 
be burnt, and, therefore, should not be as- 
sessed ; but as the interests of the commu- 
nity, generally, must suffer by a general ca- 
lamity, although some particular species of 
property might not be affected immediately, 
so all property whatever, permanently held, 
was deemed to fall within the danger of 
loss, and the necessity and benefit of security. 
The question which first suggests itself, 
is— has a man any interest in a house that 
may be burnt? will he suffer by a fire? If 
he will, the questions as naturally follow, 
to what extent will he suflTer? what is the 
value of his interest? and to what amount 
should he pay for security? Jfthe landlord, 
in the contemplation of the act, and the ad- 
ditional security derived to future buildings 
on his ground, exacted a higher rent, he is, 
or ought to be, assessed in proportion to* 
such rent ; and, therefore, his assessment 
must tend to lighten the assessment on the 
tenant. I cannot suppose that the value of 
the ground and house together, may only be 
worth the ground renfc; it may be so, and, 1 
dare say, is, in many cases. But 1 cannot 
HBlieve parties from the consequences of iia- 



Th« Apprai3br> 




9t } 




provident bargains, or any iinexpccttd de- 

TbTAPp'RA^R* kTiV^ ^^^- "^"'"^^ of houses and stores in 
lb. APPRAisBRs .St John's, arising from the revolutions of 

MoKRis. f"**"*^ «n<l decline of fisheries. All J can do 

18 to apply a construction to the Act, such as 
the legislature must be presumed to have 
intended. To me, it appears in the light of 
a general and permanent assurance against 
fire. Has a man any property at stake ? 
has he a house or store to insure against fire ? 
then he has derived some benefit from the 
security afforded, and should pay in propor- 
tion to his interest in the general benefit. 

JITarc/t 18fA. 

Those Blatulei 
which require a 
licfiif'e from a «ia- 
giilrate fur the re- 
tail uf liquors, 
have for their ob« 
ject the preservR« 
lioii of the healih 
end morals of the 
people, aiiH nre, 
therefore, applica< 
hie lo the (^iidi- 
lion of this coun- 
try. BiU those 
sialtOes which re- 
quire a license 
from the commis- 
timers of excise, 
have a fiscal ob- 
ject, and cannot 
be cntorced here. 

R. YoNGE ag-ai/15/ James Blaikie, Esq. 

HIS case had been ordered to lie over, 
to enable the Court to look into the law; 
and on this day, the Chief Justice delivered 
the following judgment npon it : — 

This action is brought for the purpose of 
obtaining the opinion of the Supreme Court, 
how far a license from the Sessions is neces- 
sary to authorize the retailing of spirituous 
liquors; and to what penalties persons who 
may retail distilled spirits without such li- 
cense are liable. 

The conviction is made in virtue of the 
35th Geo. III., cap. 113, and is drawn in 
the summary form therein pointed out. Se- 
veral objections have been taken to the con- 
viction. It is contended that the statute 
upon which it is founded, has been repealed 
by the 48th George III., cap. 143; and that 
8upp<)sing the Court should not be of this 
opinion, yet the statute is a Jaw of excise and 
revenue, and as such, cannot be enforced in 
Newfoundland. 1 f^ntt^v^^imoA ar>.r^^ ^^..i.f 

whether the 48Ui Geo. 111. had not repealed. 




expccttd <le- 
iinH stores in 
evolutions of 
All J can do 
Act, such as 
med to have 
I the iijsht of 
ance against 
ty at slake ? 
against fire? 
lit from the 
\y in propcr- 
1 benefit. 

IK IE, Esq. 

to lie over, 
o the law; 
:e delivered 

purpose of 
reme Court, 
f spirituous 
>ersons who 
out such li. 

irtue of the 
3 drawn in 
d out. Se- 
to the con- 
the statute 
en repealed 
! ; and that 
t be of this 
'excise and 
m forced in 

ot repealed. 

the 35th Geo. III., by implication, as it ap- 
peared, on a first view, to introduce more 
extensive provisions upon the same matter 
(a); and this doubt was strengthened by 
finding that it had been raised in a book of 
some merit upon the duties of a justice of 
peace (b). But upon more attentive exami- 
nation of the several laws relating to licen- 
sing the retail of liquors, it will be found, that 
they are divided into two distinct classes, 
■with two distinct objects, viz., the justice's 
license, and the excise license — the one re- 
lating to the police, and the other to the 
revenue. By tracing the laws themselves 
from their source, the distinction will be- 
come more evident. I shall endeavour to 
do so, premising, that I have no index or 
means of referring to the statutes, except 
the abridged and very imperfect tables pre- 
fixed to each volume. 

Op the Justice's License. — So early 
as the reign of Edward Vi., statute 5lli 
and 6th, c. 25, it was enacted that none, 
except such as were allowed by two justices, 
Bhould keep a common ale-house, or tippling- 
house, or use commonly the selling of ale, 
or beer, under the penalty of twenty shil- 
lings. The next statute was the 3d Charles 
I., cap. 3, which extended the like prohibi- 
tion to the retailing of cider or perry with- 
out license, and was followed by the r2th 
and 13th William III., cap. 15, which fur- 
ther extended the prohibition to the retail- 
ing of brandy and other distilled liquors 
without a licentie, in the same manner as 
was required to sell ale or beer, and under 
similar penalties. This statute was subse- 
quently repealed, but the provision requiring ' 
ajustice^license to retail spirituous liquors, 

(a) East Rep. 44. 

(b) Dickinson's J. P. Art. AFe-house, note h. 






i fl 





was revived by the 2d Geo. II., c. 28, 8. 10, 
which enacts, that no peisons shall seii 
*' brandy or other distilled liquors by retail, 
to be drank in their houses," but such as 
shall be thereunto licensed, in the same 
manner as the ale-house keepers. 

The next statute which it may he neces- 
sary to notice, is the 26th Geo. II., c. 28, 
which requires the magistrates, upon grant- 
ing a license to any person to keep an ale- 
house, to take recognizance for the mainte- 
nance of good order therein. This statute 
also contains other provisions, as to the time 
and manner of granting licenses. 

In consequence of the confusion intro- 
duced by different laws and different pu- 
nishments, in relation to the licensing of ale- 
houses by the justices, it was found neces- 
sary to pass the 5th Geo. III., c. 46, which 
enacted, that in lieu ofthe penalties inflicted 
by former Acts of Parliament on retailers of 
ale, beer, and other exciseable articles, with- 
out license, the offender should forfeit forty 
shillings. This penalty is increased by the 
3<)th Geo. in. to twenty pounds, and a dis-r 
cretion is placed in the power of the con- 
Ticting magistrate to reduce the fine to any 
sum not less than ten pounds. All these 
Acts of Parliament relate solely to the jus- 
tice's license, or as it is called in the statute 
under which the conviction i^ made, a li- 
cense to retail ale, beer, and other excisa- 
ble liquors. The word ** excisable " is 
used merely as a term of description ; it was 
HO used, for the first time, I believe, in the 
statute 9th Anne, cap. 23, which required 
the justice's license to be made upon a stamp. 
It should be observed that the justice's li- 
cense was, at thai time, the only license 
required for selling aio, beer, auil othcf li- 
quors, subject to an excise duty. The term 

J { 


, c. 28, s. 10, 
US shall seii 
ors by retail, 
but such as 
in the same 


ay be neces- 
II., c. 28, 
upon grant- 
keep an ale- 
' the mainte- 
This statute 
IS to the time 


fusion intro- 
difTerent pu- 
ensing of ale- 
found neces- 
c. 46, which 
Ities inflicted 
m retailers of 
rt'clea, with- 

forfeit forty 
eased by the 
Is, and a disT* 
r of the con- 
e fine to any 
}. All these 
y to the jus- 
n the statute 

made, a li- 
•ther excisa- 
xcisable " is 
ption ; it wa» 
lieve, in the 
ich required 
} justice's 11- 
only license 
liiu oiucr ii" 
r. The term 


"other excisable liquors" was merely in- 
tended to designate the kind of instrument 
which required a stamp ; it was afterwards 
copied into other statutes, and has grown 
into a distinguishing term between licenses 
granted by justices, and licenses granted by 
the excise (c). I now proceed to the 

Excise License.— The first Act of Par- 
liament which required a license from the 
Commissioners of the Excise, was the 12th 
Geo. J., cap. 12, which applied to ale and 
beer only, and was afterwards repealed; 
and it was not until the 48th Geo. III., the 
Act under consideration, that ale, beer, and. 
other undistilled liquors, required an excise 
license in addition to the justice's license. 
Pursuing the statutes, according to their 
dates, the next was the 9th Geo. II., cap. 6, 
which enacts, that no person shall sell bran- 
dy, rum, or other distilled spirituous liquors, 
in any less quantity than two gallons, with- 
out an excise license, under the penalty of 
one hundred pounds ; and farther provides 
thai no licenses shall be granted to any 
person to sell such liquors, except to those 
who may be first duly licensed by the jus- 

This Act was altered by the 16th Geo. JL, 
cap. 8, which reduced the penalty to ten 
pounds, and renewed the clause of the 
former act, prohibiting excise licenses to be 
granted to any but ale-house keepers. 

The latter provision was still defective, 
and to remedy it, the 29th Geo. II., cap. 12, 
sec. 22, enacts, ** that the commissioners of 
the excise shall not grant any license to any 
person to retail spirituous liquors who shall 
not firpt produce a license from the justices 
to jsell ale, beer, or other excisable liquors.'* 

(c) See the cue Rtx f. Downs, 3 T. R. 569, 









A ii 


It ismaterial to notice the words of this sec- 
tion, as they are copied verbatim into the 
48th Geo. HI., the Act which is relied upon 
in argument as repealing the Act under 
which the conviction is founded. I pass 
over the 9th Geo. III., cap. 6., which is 
merely a Parliamentary exposition of the 
law upon certain doubts a» to existing pe- 
nalties. The last Act which 1 have bfeen 
ablb to trace upon this branch of the subject, 
is the 13th Geo. III., cap. 56, which^ instead 
of all formei- penalties, imposes a fine ^ 
fifty pounds upon such persons as retail 
distilled spirits without a license from the 
commissioners of the excise. Thus far the 
statutes requiring an excise licensie to retail, 
only applied to distilled spirituous liquors ; 
ale, beer, and other undistilled liquors, 
might be retailed under the justice's license 
alone, which, as we have seen before, was 
liable to a stamp duty (d). J\ow the 48th 
Geo. 111., the Act in question, in lieu of the 
stamp duty, subjects the retailers of ale, 
beer, cider, and perry, to the necessity of a 
license from the commissioners of excise, 
upon payment of a certain annual duty,* 
under the penalty of fifty pounds, with the 
usual proviso, that no such license shall be 
granted to any person who shall not first 
produce an allowance from the justice tb 
ICeep an ale-house. All the last-mehtiohed 
Htatutes relate to the excise, atid imjiJoSe 
certain duties upon granting ejtcise licenses, 
-which go into the aggregate fund, ^nd form 
part of the revenues of the stttie. 

From this view of the Acts of ParliaWCTit, 
il will be seen that the JuUice's License md 
the Excise Xicc/ise are different iflstruWientB, 
regulated by diflerent laws, auid founded on 


((0 S<e Clh Geo. 1., o. 21, i. 86, aDd44tb <Jeo. HI. 


ds of this sec- 
*atim into the 
is relied upon 
le Act under 
ided. I pass 
». 6., which is 
osition of the 
to existing pe- 
li 1 have b^en 
of the subject, 
whichj instead 
>ses a fine t>f 

ons as 

ense from the 

Thus far the 
len^e to retail, 
:uous liquors ; 
illed liquors, 
stice's license 
1 before, was 
Now the 48th 

in lieu of the 
[ailens of ale, 
necessity of a 
jrs of excise, 
annual duty, 
ids, with the 
:ense shall be 
shall not firdt 
he justice tb 

and in)|!K)6e 
:cise licienses, 
nd, and form 

f Partianrenl, 
? License ^Kd 

d founded on 



distinct principles ; the justice's license liaf 
vinj? for its object the health and good order 
of the community ; and the excise license to 
provide a public revenue,— the one a very, 
necessary measure in a distant settlement, 
such as Newfoundland, to which the other 
is altogether inapplicable. ,, . - 

From every informaiion tjhich f have 
been able to collect, the Justices in thjs is- 
land have always cxei'cised a. control oyer 
ale-houses, and other places where spirits 
are commonly retailed ; the laws gutliorising 
them to exert such authority not o.nly may 
be applied, but in fact have b^ep appUed 
ever since magistrates were appointed in 
the island ; and it appears to me y.^iy pifQ- 
per Ihey should continue to be enforced (e). 
1 am aware that it is said in J^lackstones 
Commentaries, vol. 1, p. 108,, and other 
works upon the constitution of the colonies, 
that the English laws of police^ as well as ojf 
revenue, are not applicable to thecondi^JQn 
of a colony; but this must be ^%ki9n jvyji^t^ 
some limitation. ifn-* ' siir 

A police of some sort is necessary , to the 
well-being of every community in the ^arlf^ftt 
stages of its existence : the appoiptmept of 
a Justice of the Peace, and of' «a constable, 
is in pursuance of th€i 1 aws oC pc|liQ^> .^ 
much as the power of suppressing disprderiy 
bouses ; and a power of this 80i;t jmay t)^ ^ 
essentially connected mth ik^jjXfU^xmtMf^ 



■ II 

..: h.:..VMrf| o\ vlo't j.Tf 

• ' ■ • ' . ' ' • 

(e) justices were fjxat appoiatetl io i^ewfoiln|ltaiul 
ftVout Ihe y^r 1728, anq, as it wbjildf appear, asium&d an 
earlj jurisdielYon over' pubiio haaseS y (orin a memorial 
•ddfasie^ byabam, to Governor Oftonik jM)f y c^mphin ^C 

the Fishiog'Bdmirals interrefriag; ;v^|^ ,^l)|8 faiftachjaf jthsir 
" ■ ]— tMhri»ljufe|ic of<lero/1ffd- 

ikn{hotiiy,'TTlJt(fm$, :|0&]r 



i7;19. &nd illqdeslto fofiber ^ird^fs Bgaioat' tiM 'lalaiif 
•trdng liquors hy itnUoeNtedl p^«i ] , / ': ^; ; r i 1 J 






K 1) 


rising society, as the power of siip])ressing a 
not, or of apprehending a felon. 

This review of the statutes clears the 
case of another objection, viz., that if the 
laws relating to licenses are held to be ope- 
rative in this country, they must equally 
apply to the merchant who imports foreign 
liquors and sells a small quantity at a time, 
and to the publican who allows them to be 
drank in his house. The mere difference of 
persons would certainly make no difference 
in the application of the law ; but the law 
itself only applies to public houses : all the 
statutes relating to justices' licenses, the 5th 
and 6th Edw. VI., cap 25, sec. 4 ; 2d Geo. 
II., cap. 28, sec. 10; 26th Geo. il., cap. 
28— the statutes under which the recogni- 
zance for the good conduct of the parties is 
taken at the present day—refer to common 
ale or tippling houses ; it is the place where 
the liquor is drunk, and not the liquor itself, 
which is laid under the superinlendency of 
the police. The words of the law, as well as 
the reason on which it is founded, only ap- 
ply to houses were ale and distilled spirits 
are sold by retail, and consumed at the time. 
It is contended that the act upon which 
the conviction rests, is a local act, expressly 
limited in its operation to England, and, 
therefore, cannot be extended by construc- 
tion to Newfoundland. But it i» evident 
that this limitation in the act was : intended 
merely to prevent its being applied to Scot- 
land, where the retailing of liquors was sub- 
ject to different regulations. ■ 
1 '^'>® Jjf 8 of England, as such, are thp 
laws of Newfoundland, so far at least as 
they can be applied CO it. 

An 0£iniQn of Mr. ^aney the law-adviser 
to the JBoard of Tr^de, is cited in Keeveis 
History, page IIJ, wherein it is said ths^t 





siip])ressing a 

js clears the 
z., that if the 
;ld to be ope- 
inust equally 
1 ports foreign 
ity at a time, 
vs them to be 
I difference of 
no difference 
but the law 
uses : all the 
enses, the 5th 
. 4 ; 2d Geo. 
eo. IJ., cap. 
1 the recogni- 
the parties is 
r to common 
i place where 
e liquor itself, 
ilendency of 
-w, as well as 
led, only ap- 
itilled spirits 
d at the time, 
upon which 
ict, expressly 
Ingland, and, 
by construc- 
it :i» evident 
las ' intended 
•lied to Scot- 
iiors was sub- 

such, arethp 
at least as 

s law-adviiser 
d in Jieeves^s 
t is said tl^t 

the laws of the parent country cease to ap- 
ply to the new country when it becotnes a 
settlement; and if so, adds ^[r. Meeves, 
it may be important to ascertain from what 
time Newfoundland may be considered as a 

But, with every respect for the opinions of 
such very eminent men, it has fallen within 
my experience to learn, that the Colonial 
Courts date the discontinuance of English 
statute laws, not from the time of the colony 
being settled, but from the institution of a 
local legislature in the colony; and the rea- 
son of the rule is, 1 think, with the interpre- 
tation given it by the colonial lawyers. ,1 
am of opinion that the statute 35th Geo. 111. 
is in force in Newfoundland, notwithstand- 
ing the words of the Act, which limit its 
operation to England : — it is in force as the 
law of England. 

Jt remains to notice the last objection, 
which is, that the Justices of the Sessions 
have heretofore demanded a discretionary 
sura of money for licenses, as a condition 
upon which only they would grant them. I 
shall cite the acts of Parliament upon this 
branch of the subject, and observe, by the 
way, that neither the duties of the excise, 
nor upon stamps, are in force in Newfound- 
land ; and 1 know of no other manner in 
which money can lawfully be demanded for 
licenses. The 9th Geo. II., cap. 23, enforced 
by 24th Geo. 11., cap. 40, s. 24, enacts, that 
for every license granted by Justices of the 
Peace, the sum of two shillings and sixpence, 
and no more, shall be paid to the clerk of 
such justices, on pain of forfeiting £5. And 
the 48th George II., cap. 143, s. 10, declares, 
that it shall be lawful to take such and the 
like fees, and no other or different fees for 
licenses to keep a common ale-house, as 








hacre heretofore been taken by justiceft clerks. 
With these remarks, I give Judgment for the 


-i:'.i 'Siti ixft; ; . . . 

-''•''Uj'»':?iiii'J'jii ills'/ 

T ._..,...,. .-,.1 I, ". . 

I ' ? i ■ I ■ •• ■ . 

. » ' k . • ) •' i i ■. ■, . . ..; . 




■ ■ i 

■ f 



.'.'Hj htm il)\:' ■. 

•!i'l •. . .'; \:'/y\^m.. 

:f^'k}m\U:. 'HJI 



meal for the 


■ "fi hii:: 

On the SOth dfSejtterhhet, 18^2, FnAtJcw 
l^'oBBEs, Esq., of Lintolti^ Jnh^ B&rristertit 
Lau), Hsigned the office of 'Chief ^tcstke qf 
th Supreme Court of Judicature in Sewfound- 
iaud, to fjthich he had been appointed hy coiii- 
mission^ hearing dale the 4lh August, \S^^, 
and the duties of which he had discharged 
from the I5th ofJuhf, 1817, 1^ thedth Ma^ 
1822 ; during the ivhole of which period he 
was resident in this island. He was succeeded^ 
on the \st October, 1822, ^Richard Ai^ex- 
ANDBR Tucker, Esq., A. 31., of the Inner 
Temple, Barrister at Law, who took his seat 
in the Supreme Court, on the 5th May, 1823, 
and continued to preside there,as the sole Judge 
thereof, until the 2d January, 1 826, when the 
Royal Charter, granted by His Majesty to 
the Supreme Court of Netvfoutidhnd, under 
the provisions of the 5th Qec. XV., cap. 07, 
s, i7., was promulgated, and the Bench was 
then Jelled by the undermentioned persons :-^ 

The Hon. Richard AiiEXANDER Tucker, 

Chief Judge. 
The Hon. John William Molloy,^ » ^ 
and f -g ^ 

The Hon, Augustus Wallet Pes? Il 

Barres. 5'^'^ 

And, at the same time, James Simms, Esq, 
was sworn into office as His Majesty's Attor- 
ney General, In September, 1820, the Hon. 
Edward Brabazon Brenton was appointed 




afi Assistant Judge of the Supreme Court (in 
the room o/VUf/'f Molloy, who had been re- 
Zv7dfroJhis office), and officiated zn that 
^aracteruntil tfie \Wi Octoler, 1027, when 
Z con5e9t««*pe^««>TH(lMAS Cochrane sr.- 

of the sovemment devolved on Mu i^cKER, 
i President of the Council, ^'^^^o minted 
Mr. B^ESTO?! to act as the Chtqf Judge, 
S Jameb Cochrane, Esq. «j Assistant 
l^udgtoftkeSupremeCourt, Thereturnof 
HisErcellmcyi the Governor to St. jfoAns, 
on the lUh August, 1828, pi*« an end to this 
Trrangement ; and Mr. Tuck^p anrf i^r. 
BwENTON immediately reverted to their res- 
pective offices of Chief Judge and Assistant 

i \- '.,1 >.. i 

.U.M. I'J.TJvVif/ /A'iU\, .:vui-. 

. • . i »1 it A 

;-« ? 

me Cowl (in 
had been re- 
mted in that 
; 1827, when, 
Mr, Tucker, 
who appointed 
as Assistant 
The return of 
to St. John's, 
i cm end to this 
3KEP and Mr. 
dio their res- 
and Assistant 






From the Year 1823, to the Year 1828. 



Hunters & Co., appellants, 


Hernaman & Howard, respondents. 


HIS case came on upon appeal from the 
Surrogate Court at St. John's ; and Simms, 
for the appellants, stated, that Hunters Sf 
Co. had been the suppliers to one M'Pher- 
son, a planter, and had supplied him in 
October, 1820, with articles to a large amount, 
on account oi the fishery for 1821. That 
Hunters Sf Co. had received from M*Pher-' 
son a small quantity of oil on account of 
these supplies, which had been sold for 
£26 7^. 5d., and that the respondents, who 
had furnished 3I*Pherson with the rest of 
his supplies for the year 1821, had brought 
an action against Hunters ^' Ca. in the Sur- 
rogate Court, and obtained a judgment 


May 12tk, 1823. 

The Suprema 
Court has no power 
to entertain ap- 
peals from jadg- 
meats in the Sur- 
rogate Courts for 
sums not exceed* 
ing forty pounds. 
But the Snpreme 
Court has autho- 
rily to issue the 
writ of habeas cor-, 
pus, and all other 
prerogaiire writs. 







Hunters & Co 


Hbrnaman & 


against them for the proceeds of the said 
oil. The question, therefore, for the Court 
to decide was, simply, whether //?wVr5 4 Co. 
were not, in point of fact, the suppliers of 
M'Pherson for the year 1821, and, as such, 
entitled to retain the sum in dispute in part- 
payment of 3I'P/tcrson's debt to them ? 

On the part of the respondents, Uayicard 
objected, in the first place, to the Jurisdic- 
Hon of the Cow t, which, as he contended, 
could not receive an appeal from the Surro- 
gate Court unless the amount of the judg- 
ment appealed from exceeded forty pounds : 
and in support of this objection, he referred 
to the 5th section of the 49th Geo. 111. c. 27, 
and to an opinion of the law-officers of the 
Crown, upon the extent of the jurisdiction 
of this Court, which had been entered, by the 
direction of the late Chief Justice, in the re- 
cords of the Supreme Court. But even if 
♦he Court possessed jurisdiction in this case, 
he further insisted that it was bound to affirm 
the judgment of the Court below, upon the 
real merits of the case ; for that Hunters ^ 
Co. were so far from considering themselves 
as the suppliers of M'Phfrson for the year 
1821, that they had actually defended them- 
selves from an action brought against them 
in that character, by pleading that they had 
ceased to be the suppliers of M'Pherson 
since 1820. They were, therefore, now es- 
topped by such plea from contradicting that 

in reply to the objection to the jurisdic- 
tion of the Court, Simms observed, that Air. 
Forbes had always considered the provi- 
sions of the 49th Geo. HI., c. 27, with 
regard to appeals, as merely cumulative; 
and had uniformly held that this Court 
possessed, at eommon law, appellate juris- 
diction in all civil actions whatever, decided 



Beds of the said 
'e, for the Court 
ler Hungers 4 Co. 
the suppliers of 
21, and, as such, 

dispute in part- 
bt to them ? 
dents, U ay ward 
to the jurisdic' 
> he contended, 
from the Surro- 
mt of thejudg- 
'd forty pounds : 
tion, he referred 

Geo. 111. C.27, 
^officers of the 
the jurisdiction 
1 entered, by the 
tstice, in the re- 
t. But even if 
tion in this case, 
3 bound to affirm 
below, upon the 

that Hunters Sf 
Ting themselves 
son for the year 

defended them* 
it against them 
ig that they had 
I of M'Pherson 
jrefore, now es- 
intradicting that 

to the jurisdic- 
served, that Mr. 
Bred the provi- 
I., c. 27, with 
ely cumulative; 
hat this Court 
appellate juriS' 
latever^ decided 


in tlic Surrogate Courts; and with reference 
to the estoppel, it was urged by Shnms that 
the plea alluded to by Mr. Haytvard was fded 
in au action between diflerent parties, and 
could not, therefore, have any operation, or 
force, in the determination of the present suit. 

The Chief Justice said, that as the plea to 
the jurisdiction involved a point of great 
difficulty, as well as interest, he should take 
some time to consider it ; and on the 29tli 
of the same month, His Honour delivered 
the following judgment : — 

If this appeal were to be decided upon the 
real merits of the case which has given rise 
to it, the attention of the Court would be 
confined to a single point, viz., whether that 
priority of payment, and that lien upon the 
produce of the fisheries, which the 49th of 
the late King, and the usage of this colony, 
have secured to the "current supplier," 
can be claimed by a merchant who had fur- 
nished a •• planter," about the close of one 
season, with a number of supplies intended 
for the use of the following one ; and the 
long train of able and elaborate decisions 
which have been delivered by the late Chief 
Justice upon every branch of the subject 
connected with this question, would most 
probably have enabled me to settle it by the 
application to it of those principles which 
have been uniformly recognized and acte^ 
upon by him. But, upon the part of the 
respondents, an objection has been taken, 
in limine^ to the jurisdiction of this Court; 
the judgment appealed from not exceeding 
£40, and the power of the Supreme Court tp 
receive appeals from the Surrogate Courts 
being, as they contend, confined, by i\ii^ 
49th Geo. HI. c. 27, s. 5, to jjjdgn^pnt^ 
w hich ex-ceed that amount. In orcier, tneret 
fore, to exhibit the grouijid? ^pjpn wfii^l^ "^'' 





Hernaman & 






^^^^^..^.^^ objection rests, and to explain the circum- 

cle ermine the validity of it, J shall first de- 
Hbrnaman & If l'»f ^[ords of the section above alluded 
HowABi,. to, and then advert to the conflictinff eon 
stnictions which have been put upon those 
words by Chief Justice Forbes, andThe lal 
officers of the Crown. 

IVow by the 49th of the late Kinff it is 
enacted. .♦ That upon any decree or judff! 
went given m a Surrogate Court foranvsum 

partial"! f\ '■' ^'^" ^' 'awAd ?«'r t^ 
party aga mst whom such decree or iud-! 

inent shall be given, to appeal therefrom to 

the Supreme Court, having first given notice 

recutV?o7h''S' ^"^' '^^'"« -'-" ^"^" 
for wlli ^^^.^''r^;^-^^ in double the sum 
tor which such judgment or decree was 

king or giving such judgment or decree, for 
duly prosecuting such appeal; and upon 
l^iLt'c'^rr Jn^^ment^W in theTu 
STn ?T^ /T/"^ «"•» exceeding £ioo 

such i ' '^^^" ^r '^ P^'-ty ^^^'n^t whom 
such decree or judgment shall be given or 

Cnf.^: • "" IPP- ^^ therefrom to his Majesty hi 
Counal. having first given notice if such 
ntention, and having entered into securUy 
to be approved by the Chief Justice, in dou^I 
ble the sum for which such judgment or 
decree^ was given or made, within^two day, 
after the givmg or making of such judgment 
or decree for duly prosecuting suc:h appeal 
shfll h^" • ^'^' of appeal, as soon as Sotice 
shall be given and security entered into as 

?u k1 . ^^^^^ ^""^ "^e very words of 
the 5th section of that Act, and there is „o 
another syllable in the whole chapter which 
T*~~ZZ^ - ^ - -;" tFuttiuver lo appeals. But 
It was the opinion of Mr. Forbes (whose 




n the circnm- 
callod upon to 
sliall first (le- 
il>ove alluded 
nflicting- con- 
it upon those 
, and the law 

e King it is 
scree or judg- 
rt for any sum 
awful for the 
ree or judg- 

therefrom to 
t given notice 
ntered into a 
ubie the sum 

decree was 
ays afr^r ma- 
►r decree, for 
1; and upon 
1 in the Su- 
jeding £ioo, 
gainst whom 
be given or 
3 Majesty in 
tice of such 
ito security, 
tice, in dou- 
jdgment or 
in two days 
h judgment 
iich appeal; 
m as notice 
Bred into as 
ed, but not 
'' words of 
there is not 
pter which 
leais. But 
bes (whose 

ynasons for that opinion will, by and by, be 
reviewed by me with that respect which is 
due to his Hplcndid talents,) that, independ- 
ently of any statutable enactment, the Su- 
preme Court did, and, from its nature and 
constitution, of necessity must, possess an 
appellate jurisdiction from all the inferior 
tribunals of justice in this island ; and that 
the 5th section of the 49lh Geo. Jll. was 
merely intended to prescribe the mode in 
whieh that jurisdiction should be exercised 
iuouecase; and, consequently, that it was 
not restrictive of the common law powers of 
the Court over other cases. Acting upon 
this principle, he permitted appeals to be 
brought before him from judgments in the 
Surrogate Courts of any amount ; but the 
propriety of this practice having been ques- 
tioned, and doul)ls having also arisen as to the 
right assumed ' the Chief Justice of remo- 
ving the proceedings of other Courts into the 
Supreme Court by writ o{ certiorari, an opi- 
nion was obtained (by the (Governor, J be* 
lieve,) from the law officers of the Crown, 
who certainlv differed from Mr. Forbes on 
both points. ^J'his difference did not, how- 
ever, destroy the Chief Justice's confidence 
in the reasons which had governed his con- 
duct ; and in a paper in which those reasons 
are explained at great length, and with re- 
markable ability, he accordingly requested 
that the subject might again be brought un- 
der the consideration of the King's law offi- 
cers, accompanied by those explanations 
from him which would put them fully in 
possession of the views he entertained res- 
pecting it; and in the meantime he conti- 
nued, as 1 am informed, to act as he had 
previously done. To this exposition of his 
motives no answer appears to have yet been 
given by the law officers of the Crown j and 


llVNTEKS Hi Co. 


Hf.rnaman & 




.1 -^ 




we cannot, consequently, ascertain what im- 
pression It may have made upon them. The 
question seems therefore to be still subjndice; 
and mstead of being bound by either ofthese 
discrepant opinions, 1 am now required to 
declare which of them 1 will follow; forun* 
til this question shall have been finally de- 
termined by competent authority, ! shall feel 
myself as much at liberty lo pursue that 
course which appears to me to be the proper 
one, as if the point had never been raised 
upon any former occasion, 

Having thus explained the circumstances 
under which this case is brought before me, 
i shall now give a short statement of the ar- 
guments which have been urged by Mr. 
Forbes in support of the appellate jurisdic- 
tion of this Couri; and afterwards endea- 
vour to show why 1 enfertain some doubts 
upon one of bis positions, and altoirether 
dissent from the other. 

Mr. Forbes contends, then, " iotisviribus 
suts —first, that if the 49th of the late King 
had been wholly silent upon the subject oi 
appeals, Ihe Supreme Court of Newfound- 
land would have possessed an appellate 
jurisdiction exactly similar to that which ia 
exercised by the Court of King's Bench : and 
secondly, that this power, which it derives 
from the common law, is only modified, and 
not abolished, by the statute. In support 
of the former position, he remarks, that the 
right of appeal is one of the privileges which 
the subject enjoys by Ihe common law ; and 
in confirmation of this doctrine, J would 
here observe that, after a very careful re- 
search, 1 can only find, among the almost 
infinite variety of Courts which exist in 
England, a single one of a civil jurisdictipn(a) 

(a) The Counfy Court for Middleiex, erested by 23d 
Geo. IL, c. 33, ' • 






ertain wliat im- 
on them. The 

either of these 
w required to 
ollow; forun-* 
3n finally de- 
ity, I shall feel 
pursue that 

be the proper 
r been raised 

bt before me, 
ent of the ar- 
rged by Mr. 
Hate jurisdic- 
k'ards endea- 
some doubts 
d altogether 

* totisviribus 
he late Kins; 
he subject of 
f Newfound- 
an appellate 
hat which is 
Bench ; and, 
h it derives 
edified, and 

In support 
ks, that the 
leges which 
n law ; and 
e, 1 would 

careful re- 
: the almost 
:h exist in 
greeted by 23d 


from tht decision of wliich a Writ of Error, 
or something in the nature of an appeal, 
does not lie to some superior tribunal ; and 
in the instance to uhich 1 allude, the judg- 
ments of the Court are declared, in the Act 
by which it is erected, to be final, in the 
most forcible and express terms. Still, how- 
ever, it is impossible, upon looking at the 
summary proceedings of the Courts in this 
island, not to perceive that the principle " in- 

is deeply interwoven in the constitution of 
them all; and on this account I am hardly 
disposed to carry the analogy, in this parti- 
cular instance, between the Supreme Court 
and the Court of King's Bench, quite so far 
as the late Chief Justice : at the same lime 
1 confess [ should be afraid to deviate from 
his steps, if ray opinion upon the other point 
advanced by him was in unison with his; 
but as ] cannot, after the most attentive ex- 
amination of his arguments, bring myself to 
agree with him on that point, i shall freely 
state the grounds upon which J am induced 
to think, that, whatever appellate jurisdic- 
tion this Court might have been entitled to 
at common law, in the absence of any legis- 
lative enactments in regard to it, the 49th of 
Geo. III. has strictly limited and restrained 
it to judgments for sums exceeding £40. Now 
it has been asserted by Mr Forbes, that the 
sole object of the 5th section of the above- 
mentioned statute was to enable the Surro- 
gate, or Chief Justice, to stay execution upon 
judgments in certain cases therein described, 
and that appeals may be brought in all other 
cases without a stay of execution. In his 
opinion, therefore, the provisions of that sec- 
tion were absolutely cumulative; and, of 
consequence, added to, instead of abridged, 
the appellate jurisdiction of the Supreme 


Lit NTERS & Co. 

IIp-rnam an & 


f ■ 



i- A 




1823. Court. But at common law a writ of error 

Ti.,«^ . ^ operates as an immediate supersedeas (b) ; and 
Hunters & Co. ,he Courts before which those writs have been 
Hbrnaman & »'*«"ffht, have on some occasions declared (c) 
Howard. respondents to be in contempt who have 
ventured to sue out execution after notice of 
an appeal. A stay of execution is, indeed, 
a itecessary and inseparable incident to an ap^ 
peal at common law; and, accordingly, we 
find that the legislature has been obliged 

to pass several Acts (rf)to enable respondents, 
m the particular cases therein specified, to 
take out execution upon judgments reco- 
vered by them in inferior Courts, unless the 
appellants should enter into proper security 
to prosecute their appeal, and also to satisfy 
and pay, if the judgment should be affirmed, 
the damages and costs thereby adjudged, 
together with all costs and damages to be 
awarded far the delaying of execution. It 
seems, then, to be *' luce clarior" that if thi& 
Court has a right at common law to receive 
appeals upon judgments not exceeding £40„ 
It niuM also possess at common law a power 
to suspend the execution of such judgment 
dunng the pendency of the appeal ; but the 
section already quoted from the act of the 
49th Geo. III. declares that in all cases of 
^ appeal, as soon as notice shall be given and 
security entered into as aforesaid, execution 
shall be stayed, but not otherwise; and, con- 
sequently this section has, by necessary im- 
plication, taken away any appellate juris* 
diction which this Court might, if there had 
been no such section, have claimed under 
the common law; for this section only re- 
quires security to be given where the judg- 
es; 1 Venf. 331. 1 Salk. 321. 2 Str. 067. 

(c) 1 P. Wnis. 685. 

(d) »i'€ 3*1 Jh8. I., c. 8. 3d Car. I.,c. 4. 10th Geo. 
II., c. 70 ; and 61si Geo. III. c. 124. 


writ of error 
sedeas(b); and 
^rits have been 
ns declared (c) 
pt who have 
after notice of 
on is, indeed, 
dent to an ap" 
cordingly, we 
been obliged 
t respondents, 

specified, to 
gments reco- 
ts, unless the 
oper security 
^Iso to satisfy 
I be affirmed^ 
y adjudged, 
mages to be 
^ecution. It 
■" that if this 
w to receive 
needing £40„ 

law a power 
ih judgment 
eal ; but the 
le act of the 
all cases of 
>e given and 
d, execution 
'6 ; and, con- 
3cessary im- 
ellate juris* 
if there had 
limed under 
>n only re- 
3 the judg- 


4. lOtb Geo. 





liient is of a certain amount, and only, per* 1823. 

mils a stay of execution where security! bad ^ **^ > ■■■i ^ 
been given ; and thus it has efiectually de- Huntbks & Cp. 
stroyed that property which essentially be- 
longs to an appeal at common lavv. In a 
few instances the British Parliament has, 
as we have seen, abridged the quality which) 
by the common law, a writ of error pos- 
sess«?s, of working a supersedeas of the judg-^. 
ment appealed from^ by compelling the ap- 
pellant lu put in bail in error to entitle him- 
self to a stay of execution ; but in those, 
cases to which this enactment does not 
ann'y, the common law rule still; pre-^ 

"^^^ 'is; and I think J may; ajSrm that an, 

.>,.|j<;al which will not entitle ^n appel- 
lant to a stay of execution, either condittott' 

ally by the statute law, or uncttndilionally by 

the common law, is wholly unknown to the 

law of England, Upon these grounds, 

therefore, I feel myself bound to declare,^ 

that I have no . authority to ent^tainlhis- 

appeal. And here my observations lOn .this 

case would naturally, have, fetrminated^ if, 

having had occasion in, the :cour8e<to£ them 

to advert to the power of this Court to issue 

writs of certiorari as **vexataiiqwcestio"-l, 

did not consider it necesB^y to avail. my-^ 

self of this opportunity to makej knowin vay. 

sentiments and dntientiotia upon! ia. subject o£ 

great importance^ and which has < somewhat 

agitated the public mind. 1 shall, therefore* 

now proceed to vindicate the. cl^imlsdf the 

Supreme Court to such a poiweri by show** 

ing— ' . ■ ■ :;! ,-. vi: ,( 

1st. That in the discussions oif this ques- 
tion, we are warranted in;dra\ring a parallel 

between the Supreme Court aad the COurt 

of King'sJBench. • > i;.');.^ 

. 2dly. ThatthejurisdictiCHioftheSupBeioe 

Court would be altogether .imperjfQft^a^d 





I « 



1 ■ 


9 '■' 


^% ;: 


- ■ "• i. 









'! '. 







jnaatisfrctoi-y unless it possesses tlie power 
for which It contends. i "ww 

^t^l!/' J^'^^^here is not a word in the 
Statute by which this Court was erected, 
either directly, or by inference, prohibitory 
ot its exercising such a power; whilst, on 
the other hapd, its right to do so is clearly 
deducible from some of the express provi- 
Sims of the Act, as well as from the spirit 
which runs through them all. 

And under each of these heads 1 shall 
adduce such arguments as must, I conceive 
prove convincing to every reasonable mind! 
In the first place, then, 1 shall, for the 
purpose of repelling any charge of inconsist- 
ency which may be brought against me for 
reasoning, m this instance, upon a supposed 
resemblance between the functions of the 
Supreme Court anid those of the Court of 
Kings Bench, after having expressed my 
doubt* whether an analogy obtained between 
them-upon another point, content myself 
With -obseryjng, that the appellate jurisdic- 
tion of the Court of King's Bench is founded 
©n^a different principle from the privilege it 

highest €purt of common law in the king- 
dom, it i», ^cept in asingle case (a) stand- 
Jug upon a particular reason, a Court of ap- 
peal from all otjier Courts whose proceed- 
ings ar« gojreitaed by the rules of the common 
law ; jma ihii jnrisdiction is obviously 
founded upon tbat^atural Driociple which 
connect- an infyrior with k superior; and 
renders the acts of the former liable to the 
Mvision and control of the latter. Between 
thwe Ckwrts and It. there is a sort of natural 
ttn<riieMS8ary connection; but its relation 
toCourts whose proceedings vary from the 
7 :^f — '-- '^- .«= wuufuioa law, li Kery 

> 1 


les tlie power 

word in the 
was erected, 
e, prohibitory 
r; whilst, on 
so is clearly 
express provi- 
)in the spirit 

beads ] shall 
t, I conceive, 
ouable mind, 
hall, for the 
ainst me for 
n a supposed 
ctions of the 
he Court of 
;pressed my 
ned between 
itenC myself 
ite jurisdic- 
:h is founded 
privilege it 
ari. As the 
in the king- 
se (a) stand- 
Court of ap- 
se proceed- 
the common 
s obviously 
liple which 
perior, and 
able to tiie 
. Between 
rt of natural 
its relation 
*y from the 
law, ig Very 



HbunamaN M 



different ; for with them it has no other cor- 1828/ 

cern than to prevent thein from passing those 
limits which the common law has assigned 
them ; and to enable it to do this, it is ex- 
pressly armed with the wrrits of certiorari 
and prohibition. Accordingly it was held 
by Lord Holt (6), "that wherever a new jn- 
** risdiction is erected by act of Parliament, 
^ and the Court or. Judge that exercises this 
*' jurisdiction acts as a Court or Judge of 
" record, according to the cowrie oftheeom' 
" mon lavTf a writ of error lies on their judg* 
"ments; but where they act in a ^tfmmuiT^f 
*' method, or in a new cottrse^ different from 
^' the cotnmon law, there an^rit :ol error lies 
" not, but a tf^rlHwort.'* It is maliifest, there- 
fore^ that the ivrit (^ error istiQi€o>'extensive 
with the certiorari ;• aildv cotiseqiuentiy ,: thosfe 
restraints wbicb'the40Ui of Geo. IJl. seems 
to me to have imposed upon afSpeals, do not 
necessarily extend to vftiX^otceHioraari. Ha- 
ving shown, then, tipon what' grounds, and 
for what purposes, the Court of King's 
Bench is clothed with its- high> and tran- 
scendent powers, I must next shbv^ thai upon 
similar grounds, and for sinular pnrposet, 
the Supreme Court oiigbt to possess similar 
powers; iind this I shall endeavour tojido, 
by showing in what points a- comparison will 
hold between thenti. Mow, ai^ the Court of 
King'» B^ch is the highest common law 
Court in England, so also it must be admit- 
ted that the Supreme Court is the highest 
Court in Newfoundlftud ; for, without urging 
other arguments in support of this proposi- 
tion, it is evident, from the use of the word 
* Supreme,' which is' a. term of relative sig- 
nification, that this Court must be above all 
others in this Island.; But, in order in pre- 
serve an uniformity of rule^ and t>rac'tice 
(6) Salli.263, .; / "*. 




Hbrnaman & 


.on between thetcuLui t 'un^drXch 
mictions shou d lesidp in ih^ « ""^"**'^ J""s- 

. precwely the aame footioe as its rl»im *« 
"sue any otAer of them. Jf, therefoT ft 

of this colony are totally deDriverf nf f? * 
protection to personal Iiber?rwhirh ?if* 

yet they must go this length if the^dp^v 
the Dow^Prnf *h^ a «"Si» II iney deny 

A.w •,."„''" "'" «"i'*^»'™e Court to issue it ; 

(0 L.b. 3, cap. 7, Fo, 108, «. ' 



' England, the 
I with power, 
omnium alia- 
;" and 1 think, 
it a conipari- 
I under which 
)n to exercise 
Jiove that it is 
er to correct 
inferior juris- 
ipreme Court 
icb, since the 

must, from 
e to commit 
§r Courts iu 
p my second 
the Supreme 
feet and un- 
8 the power 
there is not 
i'^es its exis- 
s authority 
he preroga* 
oDf nianda- 
u must rest 
its claim to 
lerefore, it 

can issue 
at the most 
'this Court 
ardly pre- 
d of that 
vhich the 
oved by a 
'O British 
fPus ; and 
bey deny 
issue it ; 




for unless such a power resides in this Court, 1823. 

it unquestionably does not exist in this Is- ^ ■■* v ' " ^.^ 
laud. Lame, imperfect, and most unsatis- Hunters & Co. 
factory, therefore, must the jurisdiction 
of the Supreme Court be, if it cannot issue 
the writ of certiorari ; since the same argu- 
ment which takes from it the power to do 
so, must, *• if trusted home," likewise strip 
it of every claim to issue the writ of habeas 
corpus ; and thus place more than 

SIXTY thousand BrITISB subjects BE;- 

PERSONAL LIBERTY (<?). With out meaning, 
then, to push the *' argumenlum ah inconveni- 
enti " pnything like so far as my Lord Coke^ 
who asserts tliat(c) nihil quod est incon- 
VENiENs, est licitum; and, cconrerso, that 
whatever is convenient is also lawful, I think 
1 may fairly assume that nothing less than 

<rf) In speaking of the writ of Habeat Corpus, Mr. Sddcn 
describes it as •• Libertatit personalis omnioiodcs vimJp* 
** iegUmw fere solus." [Viodic. Mar. clans, edit. A. D. 
leSS.j—Aud with reference to the word "fero,' i would 
obssrva that it appears «o me lu have been h^re employed 
by Mr. SeUen in the same sense in which it is usisd by 
Horace, in (he line " Queispnriaesse fer6 placuit peccafa, 
laboranl." (Sat. Hi. Lib. 1.)— Upon which M. Dackr 
remarks, "Le mot "fer6" u'est pas pour affoiblir, ou 
diminuer, ceUe proposition universelle. Car ii tst vrai 
que les Sioiciena soutejioient, que tnutes leg Saules 
estoient egales sans aucuoe exception. Les Latins se 
aervoient de "ferfe" & de "prop^," pour affirmer les 
choses plus modeslenent. C'e«t pourquoi Valla ecrif, 
qua " fep6 utor b&o Teste," signifie, je uie aers tovfoun 
decathabit,jen'enporte jamais d'«utre." in renderiug 
it, therefore, into English, we may, in the passage quoted 
from Mr. Selden, as well as in (he line fi'pni Horace, ex» 
press its meaning and force by (be words a//0^e/A«r, or en- 

(e) See a sensible joote upon the force of orguiKents from 
inconvenienct, by (he late Mr. Hargrave, in his edtliun of 
Co. Litt. p. 66. a. 













i HniNAMAN & 



Iheposithe language of a statute could cT^^ 
vest the inlvabitants of tl»is colony of a claim 
to participate in one of the first blessing* 
which the common hxvt of England has con- 
ferred on those wha enjoy the inestimable 
privilege of living nnder its benign and sa- 
lutary influence. But so far is the 49th of 
the late tving from containing any words 
derogating from the power of this Court to 
issue prerogative writs, that 1 am now pre- 
pared to show that its right to do so might, 
even in the absence of all other arguments 
in support of it, be inferred and deduced 
from the provisions of that Act, If we look, 
then, to the 11th and E2tb sections of it, we 
shall find that a strictly limited jurisdiction. 
is thereby given to certain Court* therein 
mentioned V but bow, 1 would ask, are those 
Coprts t(y be confined within the boundaries 
there assigned i© tbem, if there is no power 
in the Supreme Court to. check and control 
them whenever they evince a disposition to 
pass those limits ? And how can this Court 
exercise the power whicb seem* thus to de- 
volve on it, if it cannot remove their pro- 
ceedings by writ of certiorari, for the pur- 
pose of inspecting them, upon a sufficient 
suggestion that they are wandering from the 
jmth of duty prescribed to them ? But the 
inference to be drawn from the 13th section^ 
is still taoreforcible and conclusive; for that 
section gives the Chief Justice authority tov 
settle the forms of process in every, Court in. 
the Island, with the solitary exception of 
the Vice Admiralty Court;, and, surely, \ 
this must imply a power on hie part to en- 
force the observance of those forms^ since 
it would be the extreme of folly and absnr^ 
dity to impose upon him the task of settling 
them, if, when settled, they were not strictly 
iMnding and obligatory upon the Courts for 


ftte could cTi^ 
ny of a ciaitn 
fst blessinga 
and bas con- 
i inestimable- 
ign and sa- 
s the 49th of 
any words 
this Court to 
m now pre«« 

10 so might, 
p arguments 
md deduced 

If we look, 
)n»ofit, we 
»urts therein 
»k, are those 
I boundaries 
is no power 
and control 
sposition to 

11 ^is Court 
t^tbtis to de> 
f their pro- 
for Uie pur- 
a sufficient 
ng from the 
? But the 

13th section- 
e; for th&t 
uthority to, 
py Court in. 
xception of 
Qd, surely, \ 
►art to eh- 
'TtnSi since 
and absur^ 

of settling 
not strictly 

Courts for 


whose use they were contrived : nnd yet it 
is apparent that they never can be thus bind^ 
ing and obligatory upon them, if their pro^* 
ceedings are not subject to the inspection 
and control of the Chief Justice. Moat ful- 
ly convinced, therefore, that the power to 
issue prerogative writs is vested in this Court, 
I shall exercise this powei', without hesita- 
tion, whenever a sufficient cause is shown to 
me for my doing so, until 1 shall be posi- 
tively enjoined, by a competent authority, to 
desist from doing it : and 1 shall adhere to 
this determination with invincible resolution 
and constancy, because the decision 1 have 
formed upon the other point of jurisdiction, 
in opposition to the practice, and to the 
powerful reasoning in support of that prac- 
tice, of my predecessor in office, has satis- 
fied myself, as I trust it also must every im" 
partial person, that in the investigation of this 
question, my mind has been wholly free 
ivom any wish, or desire, to fetretch the ju- 
risdiction of this Court the smallest point 
beyond its due and legal limits. 

Hunters & Co., appellants, 


Trustees of John Langdon, respondents. 

JL HE appellants had furnished John Lang- 
don with supplies for the ftsheries, to the 
amount of ^27 155. Orf., ^Xuch Langdon had 
made over to the owner of a schooner fitted 
out by him for the seal-Jishery ; and the ap- 
pellants had brought their action in the 
Court below against the trustees o{ Langdon 
for this 9um, upon the ground that thev 
were entitled, in the settlement of LangdmU 
estate, to a preference as current ^uppli^s* 



Hernamah 8c 


May \2ik. 

The Surroeata 
Courl deoided.that 
the law of current- 
«upp/y does Dot ex- 
lend lo a general 
trader', and that 
c. 27, is not appli^ 
cable to tha iealn 








'I • 



Hunters & Co. 

Trutteei of John 


Jiidgment lm<!, however, been given against 
them, and reasons are assigned by the Sur- 
rogate in stupport of his decision : First, that 
iMnqdoH was a general trader, and that 
credit had been given to him by Hunters 4* 
Co. as ti general merchant. Secondly, that 
the 49th Geo. J II., c. 27, is not applicable 
to the seal-fis/terift but is entirely confined 
to the cod'Jishery. Jn appealing, therefore, 
against this judgment, Simms, on behalf of 
the appellants, contended, that both the 
grounds upon which it was founded were 
bad in law, and referred to Le MessurierSt 
Kelly's, Graham's, and Dolly s cases, in sup- 
port of his objection. On the other side, 
Hayward insisted that the judgment below 
was right in whatever light it may be viewed ; 
and contended, as in the former case, that 
the Supreme Court had not power to review it. 
The Court deferred judgment to a future 
day; and afterwards dismis'*ed the appeal, 
on the grounds stated in the judgment on 
the foregoing case. 


i ^v 

May 20/A. 

Spanish Dollar*, 
»t6 sliilliuftseach, 
•re not a lepial tea- 
der in satisraeiinn 
of a demand for 
freipht wliicli, by 
tb* Bill of Lading^, 
tba Owner of the 
Gooda had promis* 
td to pay in Bri- 
tM Sterling, 

John Uany against George & "William 

Gaden* ', 

M HIS was an action, originally brought 
in the Subrogate Court, to recover the small 
sum of £2 25. 6d., the amount of freight of 
certain goods per the brig Thomas, of which 
the plaintiff is master; but referred to the 
Supreme Court for decision, by consent of 
parties. As the question was of great im-* 
portance to the trade at large, namely, whe« 
ther Spanish Dollars, at five shillings each, 
were a legal tender in payment of freight, the 
Court took time to consider it, and to search 
the records for some precedent to guide iti 


given against 
!(I by the Snr- 
n : First, that 
ler, and that 
hy Hunters 4* 
ccondly, that 
tot applicable 
rely confined 
ng, thei-efore* 
on behalf of 
lat both the 
bunded were 
5 MessttrierSf 
:a8e8, in sup- 
le other side, 
igment below 
ly be viewed ; 
ler case, that 
ir to review ir« 
It to a future 
i the appeal, 
judgment on 

& William 

ally brought 
i^er the small 
of freight of 
la*, of which 
erred to the 
►y consent of 
of great im" 
laroely, whe« 
lillings each, 
•f freight, the 
ind to search 
) to guide it! 


Thb following judgment was this day de- 
livered by the Chief Justice in the foregoing 
case : — 

This action, though extremely trifling in 
its amount, is yet, from the question which 
it involves, one of the most interesting suits 
to the members of this community at large, 
that will probably ever come before me; for 
upon the determination of it will, in some 
measure, depend the mode in which cash- 
payments are to be made, upon all contracts 
entered into by and with the inhabitants of 
this island. The facts of the case are short- 
ly these: The plaintiff is the master of a 
ship in which certain articles belonging to 
the defendants were brought from England; 
and the hill of lading, signed by the plain- 
tiff, expresses that freight was to be paid for 
them at St. John's, in British Sterling, 
Upon the delivery of the goods, the defend- 
ants tendered payment of the freight in 
Spanish dollars^ at 5s. each; but the plaintiff 
declined receiving them at that rate, con- 
tending that he was entitled to demand 
payment in coin of the realm; and upon the 
defendants' refusal to comply with thics de- 
mand, he immediately commenced an action 
against them. The question, therefore, that 
1 am now called upon to decide, simply is, 
whether the value of a dollar in Newfound- 
land i» 5*. Sterlings or not ; and in order to 
explain the principle on which I have found- 
ed my opinion, upon a subject of so much 
interest and difficulty, I shall detail, at some 
length, the early circumstances which led 
to that attempt to alter the value of the 
dollar in this colony, which has given rise 
to the present controversy. 

From that excessive emission of bank- 
notes which took place under the Bank 
Restriction Act, it is certain that the circu- 




Jmt 30/A. 
Hany > 


G. <S:W.Qadbm 



1823. JatinR medium of England became very 






^ ,•> 

much depreciated (a); and that the vahie of 
bulhon, as measured hy this depreciated 
medium, experienced a correspond itij? in- 
crease. Indeed, the rise m the price of the 
precious metals was even in a hiifher piopor- 
tion than that of other commodities, owing 
to the immense exportations of gold and 
silver which were annually made to the 
Continent for the supjort of our large armies 
on the peninsula of ijpain ; and thus a dif- 
ference of from 25 to 30 per cent, for some 
time prevailed between the mint-price and 
the market-price v( bullion. In this state of 
thing.^ it is obvious to observe, that the ex- 
change upon England could not be prevented 
from falling considerably below par, since 
remittances might be made in cash, and a 
profit of nearly 20 percent, secured thereon, 
after deducting all the expenses of its transit. 
From a laudable desire, however, on the 
part of the officers of government, connect- 
ed with the department of finance, to check 
this discount upon their bills as far as they 
possibly could, and at the same time, from 
their not attending with suflicient judgment 

(a) Many perioni find a diflBcuIty in understanding how 
a paper'inedium can be depreciated, through any other 
cause than a doubt of the aolwncy of the Government, or 
Company, by which it was iasued ; but it is, nevertheless, 
perfectly true, Ihat it nay be depreciated by excess in the 
isaiie of ij, where llie most unbounded confidence exists in 
the solvency oft/ie body by which it was circulated. Thus 
it may be stated as a proposition, so plain and incantro- 
vertible that it may be considered almost an axiom, Ihat 
the value of the circulating medium will always vary di- 
rtctly as (be quantity of commodities to be bartered for if, 
and inversely as the quantity of such circulating medium. 
If, therefore, the latter increase, whilst the former re- 
mains constant ; or if the latter increase in a higher ratio 
than the former, itie valiin nf the circu!atin» medium 
must necessarily decrease. And such was, in reality, the 
ms« during the operation of the Bank Restriction Act. 




hecame very 
t tile value of 
i depreciated 
ispondinfj in- 
e price of the 
igher propor- 
kdities, owing 
of gold and 
made to the 
r large armies 
d thus a dif- 
ent. for some 
lint-price and 
1 this state of 
, that the ex- 
. be prevented 
iw par, since 
Q cash, and a 
ured thereon, 
\ of its transit. 
:ver, on the 
mt, connect- 
ice, to check 
\ far as they 
ne time, from 
3nt judgment 

adflritanding how 
trough any other 
e Oovemment, or 
i, is, nevertheless, 
J by excess io the 
nfidence exists in 
irculaled. Thus 
in and inoantro- 
\ an axiom, that 

always vary </t> 
a bartered for it, 
sulaiing medium. 

the former re- 
in a higher ratio 

•iilntino mofliiins 

,s, in reality, the 
Bstrictioo Act. 

lo the causes which regulate their value, 
Ihey frecjiicntly declined to negotiate them, 
except upon such terms as runtlered it more 
advantageous to the party applying for them 
to make a remittance in specie : and this ha- 
ving been accordingly done in many instan- 
ces, the want of •* sufficient circulating 
medium soon bccirno s nsihiy felt in most 
of the colonies. To reii-^dy this inconve- 
nience, different «^',Vi edici/s were resorted 
to by them. In so ic, "-rc-ourse was had to 
a paper medium, the authority of an 
Act of the Colonial Legislature: but, as no 
such measure could be adopted here, it was 
deemed advisable, in the year 1811, to raise 
the value of the dollar (the only coin in cir- 
culation) to nearly the same standard to 
which silver had </<c/* attained in England. 
For this purpose an agreement was entered 
into by the great majority of the principal 
merchants, pledging themselves to receive 
and pay the Spanish dollar at 5.*. A notice 
was contemporaneously issued by the officer 
commanding the troops, apprizing the pub- 
lic that dollars would be received at the 
army pay-office for 5*. each, in payment of 
bills of exchange, and issued to the troops at 
that rate: and, to give a farther sanction to 
this proceeding, a proclamation was issued 
by his Excel bncy the Governor, recomw 
mending the adoption of it by the mhabit- 
ants in general. That the intention of all 
these parties was, that the dollar should 
then be considered wrorth 5*. sterling (by 
which term "sterling" 1 here mean to apply 
to it the English standard^ in contradistinc- 
tion to those various currencies which obtain 
in the several polonies) there cannot be the 
slightest doubt ; and it is equally certain, 
that this intention was carried into the most 
complete practical execution for a consider- 




G. & W.Qaoen. 

• it 

mmmtf^anaMoaant ■.ix»i0an»t 






■ .,' '-^ 







able period ; during which no one ever he- 
sitated in taking the dollar for 5s. in pay- 
ment of contracts entered into at home, as 
well as in satisfaction of debts incurred in 
this country. But when, upon the arrival of 
peace, the demand for bullion to pay our 
soldiers abroad had ceased, the directors of 
the bank of England immediately began lo 
restrain the issue of their paper, in the anti- 
cipation of a return to cash-payments ; and 
the value of .bullion having been thus redu- 
ced below the mint price, a complete change 
was wrought in those circumstances which 
had occasioned the nominal increase to the 
value of the dollar in this country. Anxious, 
therefore, to ascertain how far the effect may 
have survived, in this island, the cause which 
produced it, 1 have examined a great num- 
ber of the leading merchants, in the hope of 
finding that some uniform practice had gene- 
rally been pursued by them, either to allow, 
or reject, payment in dollars at bs. each, 
where the transaction from which the debt 
accrued was of such a nature as to require 
that it should be liquidated in sterling mo- 
ney. And though a mere usage of such 
recent origin could certainly not obtain the 
force of a law in any other country than 
this, I should, notwithstanding, have sup- 
ported it, from a consideration of the pecu- 
liar condition of this colony^ if satisfactory 
proof of its existence had been furnished 
me. In short, 1 should have deemed it one 
of the strongest of those cases of which it is 
said, " COMMUNIS error facit jus." But 
so far from having adopted one uniform rule 
upon this point, the merchants appear to 
entertain the most opposite and contradic- 
tory opinions in regard to it. One stoutly 
fnainfaina that Ka Kna an t1n#1/^»U«r^^ ~:»U4. 4.^ 

tender the dollar at 5s, in payment of a debt 


one ever he* 
>r 55. in pay* 

at home, as 
i incurred in 
the arrival of 

to pay our 
e directors of 
tely began to 
, in the anti< 
rraents; and 
m thus rcdu- 
iplete change 
Lances which 
crease to the 
y. Anxious, 
lie effect may 
: cause which 
a great num- 

1 the hope of 
cehad gene- 
her to ailow^ 
at bs. each, 
lich the debt 
as to require 
sterling mo- 
lage of such 
)t obtain tlie 
ountry than 
% have sup- 
of the pecu- 

n furnished 
iemed it one 
>f which itia 
' JUS." But 
uniform rule 
s appear to 
i contradic- 
One stoutly 

intof adebt 

I Newfoundland 


I of auif description ; and tells us tirat it has 

I been his invariable practice to do so. Ano- 
f ther insists upon the same right and the 

same practice ; but admits that the masters 

II of ships from England have sometimes re^ 
f luctantly consented to accept of payment in 

dollars at that rate, after some altercation 
upon the subject. A third considers the 
question open to great doubt; and has, 
therefore, in his dealings always endeavoured 
to prevent litigation, by inserting in his con- 
tracts a special stipulation relative to the 
value of the dollar. And a fourth contends, 
that there is no ground whatever for believ- 
ing that a debt contracted in British sterling 
can be discharged by dollars at 5*. each. 
There is, mfact, almost "suus cuique mos." 
if, indeed, a question of this sort could be 
settled by a majoiitij, there would, 1 appre- 
hend, be a considerable one in favour of the 
doctnne of iha first class ; but it is a sound 
maxim, that "multitudo errantium non 
PARiT ERRORi PATRociNiuM ^ " and it is 
also a settled rule of law, that incowsu^cwt 
customs mutually destroy each other {h). I 
am, thcrcrore, quite satisfied that there is 
no existing usage in regard to the subfect- 
matter of this action, which ought to influ- 
ence my judgment in the determination of 
It. J\or can the slightest use be made of 
the Governor's proclamation in the settle- 
ment of this question. As " Arbiter of 
Commerce,'' the King may, by his proclama- 
tion, legitimate foreign coin, apd make it 
current in any part of his dominions ; de- 
clanng at what value it shall be taken in 
payments. But Sir William Blaclcstone con- 
ceives (c) (and 1 think mostjustly) that this 
ought to be done by compatison with the 

(b) Black. Com. Vol. l. p, 78, 

(c) iBt Com, p. 278. 








1 1 

^ i 

! ■■ 

n • 

ii.\ % 




G. & W« Gadbn. 

Standard of our otvn coin ; and that otliervvisd 
the consent of Parliament would be neces" 
sary. Sir Matthew Hale, however, is of 
opinion (rf) that the King may, by virtue of 
his prerogative, debase or enhance the value 
of the coin below or above its sterling value ; 
and refers to a case wherein it was deter- 
mined, upon great consideration, that a 
tender in base money, which Queen Eliza-* 
betli, by her proclamation, had ordered to 
pass current in Ireland, was legal. It seems, 
therefore, not to be clearly settled what are 
the precise limits of the royal prerogative 
upon ithis point ; and, conse(]|uently, if the 
King's representative in this island had ta- 
ken upon himself to order, by proclamation, 
that the dollar should be circulated for 5*. 
sterling, it would, perhaps, have become a 
nice question for me to decide upon the va- 
lidity of it ; since such eminent characters 
as Sir Matthew Hale and Sir fFilliam Black- 
stone have advanced opposite opinions upon 
it. But, fortunately, that question cannot 
be raised in this case; for the Governor's 
proclamation respecting the ^ alue of the 
dollar is purely r«commew(/r/ or^, and does 
not in any shape assume to prescribe a po- 
sitive rule in regard to it. The greatest 
force that could attach to this proclamation, 
would be to sanction, by the concurrence of 
the Crown, an alteration in the value of the 
dollar, if the inhabitants would consent to 
make such an alteration ; and we are thus 
brought back to the question, how far such 
an alteration has been made ? And this can- 
not, as 1 have already shown, be determined 
by any usage, orcustom, uniformly adopted, 
and uninterruptedly acted upon, by all the 
members of the community.— 1 must also 
here take occasion to remark^ that i cauuot 
(d) 1 Hal. P. C. 184. 





lat otherwisd 
lid be neces" 
wever, is of 

by virtue of 
nee the value 
;erling value ; 
it was deter- 
Lion, that a 
Queen Eliza* 
I ordered to 
al. It seems, 
Lied what are 
il prerogative 
Liently, if the 
sland had ta- 
ulated for 5*. 
.ye become a 
upon the va- 
nt characters 
illiam Black- 
pinions upon 
estion cannot 
e Governor's 
value of the 
iry, and does 
sscribe a po- 
The greatest 
)ncurrence of 
3 value of the 
d consent to 

we are thus 
how far such 
\nd this can- 
)e determined 
mly adopted, 
on, by all the 
-1 must also 
thut I caiiuot 

discover, by the records of this Court, that 
there has ever been a direct adjudication up- 
on this point by the late Chief Justice ; though 
I believe it was incidentally raised in seve- 
ral of the cases (e) which were decided by 
him ; and from what 1 can collect from those 
cases, 1 have reason to think that his view 
of this subject very much corresponds with 
ray own. 1 confess, then, I do not see by 
what right, " or colour like to right," the 
defendants in this action can insist upon 
the plaintiff's accepting of dollars at 5s. 
each, in payment of a demand upon (hem 
for freight which they have covenanted to 
pay in British sterling. They may tell him, 
it is true, that the people of Newfoundland 
have agreed to circulate the dollar at that 
rate ; but to this it might possibly be a suf> 
ficient answer for the plaintiff,- that he was 
not a party to such an agreement-—" Non 
HJEC IN F^DEBA VENi.''— But, admitting 
that the people of this country could, by 
general consent, and with the approbation 
of the Governor, have raised the value of 
the dollar to 5s. in such a manner as to make 
it current at thatrate in all transactions iv/iat^ 
ever, slill the defendants could not derive 
any benefit even from this admission, be- 
cause tliere is not, as 1 have before demon- 
strated, any existing usage, or custom, 
founded upon such agreement, which can 
be applied to the determination of this 
question. The tender of payment which 
was made by the defendants being therefore 
not a legal one, it follows that judgment 
must be entered for the plaintiff. Lest, 
bowrver, it should be erroneously supposed, 
that the principle upon which ] have decided 
this action will be extended by me to con- 

(e) I alludn to Stewart v. Ilutchingi-Cookesley j. 
MUchell~mii Uait ^ liobimon r. A. If, Carter. 



G.& W.Gaobn. 



m I 


tl,t' ' *■ 




O. & W. Gadbn. 


tracts entered into between parties who all 
reside in this Island, it will be proper that 1 
should give some explanation of my opinion 
and intentions upon this point. ?jow it is 
conceded, on all sides, that for several years 
past the dollar has obtained a currency (/) in 
this place for 5s. ; and that such is always 
understood to be its value in all the ordinary 
transactions of life. — When the butcher tells 
me that beef is a shilling a pound, his mean- 
ing always is, that 1 may have five pounds 
for a dollar ; and when the merchant sella 
me a cask of wine for £30, he has not the 
most , distant idea that he is asking more- 
than two hundred dollars for it. Nay, fur- 
ther, many salaries which were formerly paid 
in sterling money, are now paid in what I 
must call the currency of Newfoundland. In 
a word, there is not a contract entered into 
here, in which there is not an implied under- 
dfanding between the parties to it that any 
debt arising out of it may be discharged by 
a payment in dollars at 5s. each. The 
practice, itself, I have already traced to its 
original source ; and shown that its exist- 
ence ia derived from that want of a circula- 
ting medium which has at one time or other 
induced most of the colonies to attempt to 
prevent the exportation of their coin, by ei- 
ther reducing the weight, or enhancing the 

(f) WhoD the sereral colonial legislatures first altered' 
the value of their coins, they uudoublediy thought that the 
alterations prescribed by th . ti rr.jld (•« real, and not nO' 
minal, ones. They soon found, bor^ever, that tbeir poweir 
extended no further than to maku those coins pass current 
at a higher nominal value ia the particulsK c««untrie3. 
which were subject (o their laws ; and that in all trans* 
actions bet?*een them and the parent kingdom, no chango 
whatever look place in the value of the coin. Every- 
coin bad, therefore, two falues, a steilintf and a current 
one: and I think that the same edect has been nroduccd 
in Newfoundland, with respect to the dollar at least, by 
the inhabitants cuusenting to circulate- it for 5s, 




arties who all 
proper that 1 
of my opinion 
?^ow it is 
•several years 
mrrency (J) in 
ich is always 
the ordinary 
butcher tells 
nd, his mean- 
five pounds 
merchant sells 
has not the 
asking more- 
t. Nay, fur- 
formerly paid 
d in what JL 
iundland. in 
entered into 
u plied under- 
> it that any 
lischarged by 
each. The 
' traced to its 
tat its exist- 
ofa circula- 
time or other 
attempt to 
r coin, by ei~ 
ibaucing the 

iturea first altered< 
f thought that the 
real, and not nO' 
, that their power 
oios paat current 
-ticulat c««aniries- 
bat in all trans* 
gdom, no chango 
lh« coiii. Every. 
( and a current 
s been nroduccd 
lollar at least, by 
fur 5s, 

hbminal value, of it. The folly and injafe- 1823. 

tice of such a proceeding are now pretty V,«*»-v-^te/ 
generally felt and acknowledged : but when Hany 

measures of that sort have beeii once adopt- ^ *• 
ed, and acted upon for any length of period, W.Gadbn,' 

it becomes very difficult for a community to 
get back to the path from whence they 
have strayed. Besides, the evil attending 
their deviation from it, soon brings about 
its own cure ; for though most legislatures 
have been weak enough to suppose^ that the 
talue of money depends upon them^ and 
that they may alter it as they please, yei 
their endeavours to do ^o have always pro- 
ved abortive. The universal rule is, that 
the value of coins, as of all things else, must 
ever depend upon the abundance of, and 
the demand for, them. In spite, therefore, 
of any arbitrary decree to raise the nominal 
value of money, its true and intrinsic value, 
as measured by this universal rule, will al- 
ways remain the same ; for prices will quick- 
ly adapt themselves to the new standard; 
and the only change which wnJ be produ- 
ced by it vtrill thus, after a short period, be-^ 
fcome merely a change of words and sounds 
— ** Vox, et praterea nihiV* At first these 
thanges of currency necensarily work some 
injustice, by compelling a creditor to take 
less ninney in satisfaction of his debt than 
he is fairly entitled to ; but upon contracts 
subsequently entered into, they have no real 
operation whatever. It is manifest, how- 
ever, that if we were suddenly to abandon 
the now prevailing currency, all those per- 
sons Mrho have cqntracted debts under it 
would suffer very serious injury ; and «n«« 
less some Parliamentary enactment, or some 
decision by His Majesty in Council, shall 
take place upon this subject, 1 shall always 
hold, th£^t all contracts entered into in this 





fe,.' \ 





<F*& W.Gadbn. 


*^oiinlry, whilst llie doJijr passed for (k. 
may be discliarf^erji by » payiisenr, in doH uh 
at that rate. That dollart; ^re llie only coiu 
which cari circulate here, whilst no distinc- 
tioii Is raad( (ih-aveen them and crown*pieces, 
wliich contaio more silver by a ninth pari than 
the dollir doe-v, every usan of understand- 
ing must immediately pTf^eive;anJ itsetms, 
therefore, to be excetiiingly desirable that 
some tKodeshould be adopted of transposing 
tht; currwcy of Newfoundland into British 
steiling; as is the practice in other colonies 
which have established a currency different 
from that of the Parewt State. From the 
want 6f some such measure, it is, I observe, 
usual for the merchant- here to consider 
bills of exchange as synonimous to English 
sterling; am] to lake the difference between 
the value of the dollar, under different cir- 
cumstances of the exchange, as the common 
measure of Newfoundland currency and 
British sterling. But this is, certainly, a fal- 
lacious and improper standard of compari- 
son; for the exchange, i. e. the computed 
exchange, depends upon /«a'o circumstances, 
viz., 1st, the quantity of bills in the mar- 
ket, and the demand for them ; which is 
termed by an ingenious writer (g) the real 
exchange ; and 2dly, the relation which ex- 
ists between the currency of the country in 
which the bill is negotiated, and of that in 
which it is payable ; and this is denominated 
by him the nominal exch^v^e. So far, there- 
fore, as thecomputedex.nge is influenced 
by the nominal excha^rt^, it is a correct 
measure of the dii "e". n a between the cur* 
rencies of any two ' vi in-as; but as the corn* 
C^) Mr. Blake, wbo bts «qJ lined the prioeiples whicb 
fOfera the ezobaoge in ar ^%>. ' ><{ most Irapuious ina- 
«iie apon that aubject.— See ^ 's^» ; a ezeelleat pampblel 
fejr Mr. Uuiiduant entitied " Th ■o^^^eatioB." wbieb'con- 
Mm niMh vaeful Md highlj L. t <:dre iafonnitioa leift- 



ssed for 5ir» 
mi iii doH'irH 
the only coiti 
t no distinc- 
nth part than 
iind itsetms, 
ssirable tliat 
f transposing 
into British 
her colonies 
icy diflerent 
From the 
s, 1 observe, 
to consider 
to English 
nee between 
ifferent cir- 
the common 
rrency and 
tainiy, a fal- 
of compari* 
le computed 
in the mar* 
I ; which is 
[§•) the real 
n which ex- 
country in 
of that in 
far, there- 
s influenced 
s a correct 
;en the cur- 
as the com' 
rioeiples wbiob 

llUnillOUB IFM- 

>Il«Dt pampblel 
I," wbiob eon< 
ifoimttioa Nla« 



puted excliange is also affected by thereal ex- 
«?hange, which is liable to continual fluctua- 
tion, the computed exchange ought never to 
be taken as the measure of thai difference 
wit loutpreviously ascertaining what the state 
of the real exchange actually is. But it is not 
lor me to suggest a remedy for the many in- 
conveniences which grow out of the crude 
and anomalous condition of our currency (k) 
My province, I am sensible, is «* Jus dicere 
BT NON JUS DARE :" and I trust I am one of 
the last men upon earth to usurp an office 
that does not properly belong to me. Con- 
ceiving, however, that it may be useful that 
my sentiments upon this important subject 
should be generally known, and perfectly 
understood, I have investigated it with the 
closest attention ; and in the hope of pre- 
venting litigation by an early publication 
of the rules by which 1 shall henceforth be 
guided in the determination of all questions 
which may arise out of it, 1 shall now ar- 
range those questions under four geiferal 
beads, or divisions ; and concisely state the 
nile^which appears to Ue applicable to each 
of them. 

1st. Where contracts are formed, or a debt 
m any way accrues, in Great Britain, the 
presumption seems to be, that the parties 

(A) ^mong ihe evila aUending ibe present state of onr 
ourwocy. I oanoot forbear to notice the want whirhL I 

«t a dollar. Tbat bv ebitl n&B of thp nam Pn»i:.k • 
•bould b. gi.en in e.chaagifor . doH.rT wbfc^dor"*! 
oonlala nine^ientk, of tbe .iker rbat .hey 50^0 one , .hi;? 
can suppose : and it is even less rrohablo thai fi.« « "''• 
qf a doJIa. (wbicb contain ratbef 3l^|„r h '%^""'"» 
.hillings) Should be given in exXngT 'ooel'lS* 
f he necessary consequence. Ihereforef of „ot rlf.ijf thl 
value of lhe/rac/ion«/ parti of ibe dollar in the til/ 
jiortim foUh t/ie dollar; v,uB lo dHve those yricLlT^"' 

out of ih»«n.m.r- . .„j .._! J . ,"■* TMHonal parts 

"' ' """ «"Jc»3 iiieir place bad been '■•m 

S!m .3^ 'T* 'P""""* "«•-'>"' «f •»•« old S-!"'^: 

would bav. been very difficult, and almost neitSiJ 
possible, to procure cbaoge for a dollar "' 









1 1 



G. & W. OADBlf. 


must have understood that payment was tq 
be made in Sritish sterling. I shall, there- 
fore, by 2i generalintendmentoflaWtQOimi\QV 
this as forming an essential part of all such 
contracts; and shall, consequently, hold, 
that they cannot be discharged by payments 
in dollars at bs. a-piece. And, a multo for- 
tiori, that a payment of that description can- 
not be a«legal satisfaction of a contract in 
which, ex abundanti cauteld, the parties have 
inserted an express stipulation for payment 
in British sterling. 

2dly. By an agreement— carprcj* on the 
part oC those persons who signed it, and 
implied on the part of the other members of 
the community, by their acquiescence in it 
for nearly twelve years past — the dollar has 
obtained a general currency in this island 
for bs. In all transactions and dealings, 
therefore, which are wholly confined to 
Newfoundland, I shall enforce this general 
agreement as strictly as if the parties bad, 
in each particular case, covenanted to ac- 
cept of payment in dollars at that rate. 

3dly. All debts which may be contracted 
between the inhabitants of this island, and 
of those countries (for example, Canada and 
Nova Scotia) where the dollar also passes 
for &s.f may be satisfied by payments in 
dollars at that rate ; unless there be any 
circumstance attending the transaction out 
of which the debt arose, from which it may 
be fairly inferred,^ that the parties intended 
that payiqent should be made in British 
sterling. , 

4thly. In our intercourse with those coun- 
tries which have a currency of their own, 
different from British sterling, and also dif- 
ferent from the Newfoundland currency (t), 

(t) By ao tct of the New Brunswick legislature (be 
nominal value of tba dollar Aoi lately been raised to 5s. 4U, 
in that prwince HI 

" I 

Lt was tq 
II, there- 
all such 
y, hold, 
tion can- 
ntract in 
ties have 

' on the 
I it, and 
mbers of 
mce in it 
ollar has 
lis island 
fined to 
s general 
ties bad, 
j to ac- 

and, and 
lada and 
io passes 
ments in 
be any 
ction out 
;h it may 
I British 


we must adopt the principle, ** quam legem 
exteri nobis posuere, eandem illis ponemus ;'* 
and admit evidence of what their practice 
is respecting the payment of debts growing 
out of contracts which have their inceptiou 
here, and their completion in any of those 
countries. Thus, if freight, for instance, 
from Newfoundland, is paid by them in their 
currency, freight from thence to Newfound- 
land will also be paid by us in our currency j 
but if it has, by the course of trade, been 
generally settled in British sterling, the same 
custom will also be observed by us. 

In framing these rules for my future 
guidance, 1 have been obliged, in the absence 
of any municipal law to regulate our cur- 
rency, and of any judicial precedent to de- 
termine how far custom has supplied the 
place of such a law, to resort to principles of 
natural equity ; and 1 cannot close my ob- 
servations upon this most interesting sub- 
ject, without expressing my unfpigned diffi- 
dence in the powers of my mind to grapple 
with a question of such vast magnitude, and 
accompanied with circumstances of such 
singular difficulty. Under the strong im- 
pression of this feeling, I shall, therefore, 
earnestly recommend any person who may 
be dissatisfied with the principle upon which 
1 profess to decide it, to avail himself of 
the first opportunity of bringing the point, 
by an appeal from my judgment, under the 
qopsideratioa of his Majesty in Council, 




)se conn- 
leir own, 
also dif- 
ency (i), 

islature the 
d to 5s. 4((, 



An eleclioo of 
according lo (he 
^re^ailing practica 
in thia country, is 
good : aDdchiircli" 
wardens so elected, 
have a right to r«> 
move from the 
church any arli- 
tides they may 
deem injurious to 
its appearance, or 
offensire lo the 
members of the 


William Nevfman a(r,nnst The ChurcA- 


Jj 111!) several points whfch arose in this 
case are stated, and tlic law applicable to 
them explained, by the Chief Justice, in the 
following: judgment :— 

Per Curiam. The only question for the 
Cowt to decide in this case is, whether the 
defendants were authorized, as Church- 
wardens, to remove from the plaintiff's pew 
certain curtains and other fixtures which 
they peem to have considered injurious to 
the general appearance of the church, and 
offensive to some of the nieuibers of the 
congregation I In the course of the trial an 
attempt was, indeed, made to show ,ir\t the 
defendaats bad not been electtd Clmrch- 
wardencft^cordi^ig fo nil the forms aud solem- 
nities required by law ; but 1 Hien expressed a 
strong opinion that it was rfuite sufficient, in 
an action of this nature, for the defendants 
tj prove that they had acted as Churchy- 
wardens, and been acknowledged as such 
by the community at large. Upon this 
point, the ase oi Baryman v. Wise, 4T.R. 
306, is quite conclusive; for thore Mr. Ji»a- 
tice Bullev h reported to have said, that 
"in the cas*' of all peace-oflir rs, justices o£ 
*• the > ac constables, ''.c. it was sufficient 
**to \ av« hat they actnd in thosr charac- 
** ters,. v'ithoiit producing * heir appointments 
**(and that even in the case of »nMr<fc;*^; and 
"that in actions for tithes it is not necessary 
" for the incumbent to prove presentation, 
" institution, and induction ; proof that he 
" received the tithes, anti acted as the in- 
•• cumbent, being sufficient." There can be 
i» :iuUu;, liivrciorc, uui liia^ proGiofthc- 
defendants having acted as Church-wardens 

he ChurcA- 

arose in this 
ipplicable to 
uslicCy in tiie 

ation for the 
whether the 
as Church- 
aintift's pew 
itures which 
I injurious to 
church, and 
ibers of the 
i the trial an 
liow ,it \t the 
ttd Ch urch- 
in and solem- 
ex pressed a 
sufficient, in 
! defendants 
as Church^ 
ged as such 

L'pon this 
Vise, 4T.R. 
«re Mr^ Ji»a- 
! s si, that 
I, justices o£ 
as sufficient 
losf charac- 
urder) ; and 
)t necessary 
)of that he 

as the in- 
here can be 
proof of the 


is all that can be required iu tliis action. I 
do not, however, by any means, regret ha- 
vmg allowed art investigation into the na- 
ture of the defendants' appointments; be- 
cause fiat inveslijration has enabled me to 
deliver an opinion upon it which will proba- 
bly prevent i\w question from beinj; brought 
before me again in another shape. 1 have 
no hesitation, then. declaring that, iipon 
an attentive consideration of all the evi- 
dence which was adduced under this head, 
I am fully satisfied that the defendants were 
duhj elected Church-wardens. J t is true their 
election was not conducted precisely in the 
same manner that it would have been in 
Jingland ; but neither was it possible that it 
should be so ; for (to pass by other trifling 
deviations from mereform) the oath which 
13 taken in England by Church-wardens, 
and upon the neglect to administer which in 
< country so much stress has been laid by 
tlu plaintiff; ought to be taken by the 
Church-wardens in the Archdeacons Court; 
and, consequently, could not be adminis- 
tered in this country, whero there is no such 
Court (rt), in the same way iu which it is dr-e 
m England. But if we look to the dis- 
putes which long prevailed between tho 
temr)oral and spiritual Courts witii respect 
to the right of the latter to administer 
oaths to Church- wardens (&) ; and. at the 
same time, consider that the tendency of 
the oath (c) which, by ihe permission of 
the temporal Courts, is now administered 
to Church-wardens, is merely to place 
them under a irort solemn obligation to dis- 
cliarge faithfully their duty towards the 

(a) Since (hif judgment «ras delivered, ao Arcbdeacoo 

(0) Gibton'f Code. om. 

(«) S«e it at length ioGib*. 219.. 





Tlie CHDRcnr* 









Ill 1 


church, we must perceivf that the oath beiilj; 
intended lor the benelit of the church, and the 
right to administer it being conceded to il 
n.-. an irtdulgence, the church is at liberty trt 
wave this privilege .upon the principle •' gu is- 


TRODUCTo ; and that, consequently, an oath 
of that nature cannot be deemed essenfially 
necessary to the validity of the appointment of 
aChurch-wardtn ihthis country. Thecttect 
of the plaintiff's argument throughout, is to 
prove too much : for he contcndn for a con- 
formity, *• in omnibus,"' between the usages 
of Etigland and of this country ; forgetting 
that if the church here were really clothed 
with the same charncter, and invested with 
the same rights, which it enjoys in England, 
he would be liable to the payment of tithes, 
Easter-ofl'erings.and other ecclesiastical dues 
wiiich are^ unquestionably, of far greater va- 
lue to the church than her privilege of com- 
pelling Church -wardens to take an oath for 
iho faithful execution of their office. But 
wc are taught by reason anrl good senses as 
well as by act of Parliament (rf), that the law 
of England is the law of Newfoundlandi so 
far, only, as it can be applied to the situa- 
tion and circumstances of this colony ; and 
the slightest attention to its present situation 
and circumstances, must convince us that a 
very small portion indeed of those parts of 
the canon law, which, by long custom ^ have 
been incorj,.. rated into the laws of England, 
Are capable of being carried into operation 
here. The utmost, therefore, that can be 
insisted on bv the most rigid stickler for 
form, is, that t At usages should conform to 
those of the mother-country as closelu as air- 
tumstanceswillpmnit: and trying the prac« 
tice which has prevailed here, in regard io 
(d) 40lb Geo. 111., o. ^/, s. I* 


le oatti bciilj:^ 
arch, ami the 
needed to it 
9 at liberty to 


intly, an oatli 
n\ essentially 
ly. ThecHcct 
oughout, is to 
id» for a con- 
en the usuKes 



really clothed 
invested with 
rs in England, 
nent of tithes, 
esiastical dues 
far greater va-* 
irilej^e of com- 
ce an oath for 
ir office. IJut 
ood sense, as 
f), that the law 
fonndlandj so 
to the situa- 

colony ; and 
esent situation 
ince us that a 
those parts of 
: custom, have' 
rs of England* 
into operation 
B, that can be 
pid stickler for 
d conform to 
i closely as cir- 
rying theprac* 

in regard io 


the appointmontof Church-wardcns, by this 
standard 1 can iind no fault at all with it. 
Un the contrary, I have observed with much 
satisfaction that the practice here seems to 
follow as closely as possible, the rule pre- 
scribed by the 89lh canon(f') ; and knowing as 
J do, that the most important deviations (/) 
from that canon will not impugn the validity 
ot the election of Church-wardens in Eng- 
land, provided there be n custom to warrant 
wich departure from it, 1 have no scruple in 
pronouncmg the defendants, who were cho- 
sen according to the custom which has uni^ 
formly prevailed in this island, to have been 
dtify elected. 

Assuming, then, that the defendants were 
t^hurch-wardens. properly chosen and ap- 
pom ted, It remains to be determined whether 
as such, they had authority and power td - 
remove the curtains and other articles from 
wie plamtira pew in the manner they did. 
And I conceive that they clearly did possess 
such authority and power. That the own- 
ers of pews have not an absolute, but onlv 
a qualified, right to them ; and that th4 
cannot, consequently, make any alteration 
»n them which has the remotest tendency to 
injure the appearance of the church, or to 
annoy any member of the congregation, is 
a position too plain to admit of an argument- 
. but from this proposition it follows, as a 
corollary, that a power must be lod«»ed 
somewhere to determine what alterations 
are injurious to the appearance of the 
church ; and by the law of England (s') such 
a power is placed in the hands of the Church- 

(e) Se« Ca«e»T. £aru)ici&,1 Sir. 145. 

"Lo-rdofihe Manor "'" -—'«»''»«<«««-. o, by i^ 
(Sr) Burns'B Eccles. Uw, vol. 1, p. 386* ' i> i * ? 





The Ciii)RcH« 





nu \i 




The Church- 


wardens, who may, with the consent of the 
parson, pull clown anything which has been 
erected in the church by an individual with- 
out due license. 1 apprehend, therefore, 
that the proceeding complained of hardly 
needed the sanction of a vestry reeolntion, 
though that certainly gives additional force 
to it. And, with respect to the objection 
which has b^en urged against the notice by 
which the meeting of the vestry was called^ 
1 shall only remark, that as the use of a 
notice is to apprize interested parlies of the 
subjects which will be brought under the 
consideration of the vestry, in order that 
they may appear to defend their rights, 
a defect in the form of the notice must 
necessarily be aided by the appearance of 
the party '; and, consequently, that as the 
2)laintijf'was actually present at the meeting 
in question, he cannot have sustained any 
prejudice from a defect in the form of the 
notice by which it was convened. 

A power to remove any fixtures placed in 
the church by an individual, being thus, an I 
conceive, vested in the Church-wardens— at 
any rate, in the Church-wardens and vestry 
-^it is not for this Court to say whether or 
not they have exercised this power with 
discretion ; because 1 have no legal rule by 
which to measure their conduct ; and, in the 
absence of such a rule, 1 am aware that my 
[opinion upon it is not entitled to any par- 
ticular regard. In justice to the defendants, 
however, 1 must add, that they do not ap- 
pear to me to have been influenced by those 
hostile and vindictive feelings towards the 
plaintiff which he is disposed to ascribe 
their conduct to: and 1 am p -suaded they 
will readily restore the curtains and other 

(A) Qanw. if thi plaintiff's properly in tbeiu be extin- 
gjuiehed or ool.-<Sce Burna'i Ecclci. Law, vol. X, p. 837. 



• 55^ 

nsent of the 
ich has been 
vidual with- 
I, therefore, 
d of hardly 
y reeolntion, 
litional force 
he objection 
le notice by 
r v/as called, 
the use of a 
parlies of the 
ht under the 
n order that 
their rights, 
notice must 
ppearance of 
, that as ihe 
\ the meeting 
ustained any 
le form of the 

ires placed in 
;ing thus, an I 
-wardens— at 
ins and vestry 
ly whether or 
5 power with 
) legal rule by 
t ; and, in the 
aware that my 
;d to any par- 
he defendants, 
;y do not ap- 
inced by those 
s towards the 
ed to ascribe 
•suaded they 
lins and other 
ijidertakinff on 

in Ibem b« eztin< 
aw, vol. J, p. 837t 

]iis part to desist from any farther attempt 
to fix them in the church. 

John L.L. Chancey against T. H. Brook* 

ING, administrator to the estate of 

John Murphy. 




an action to recover JG27 145. 
for the occupation of certain premises be- 
longing to the plaintiff. The nature of the 
suit is sufficiently explained in the following 

Per Curiam, — It is admitted that the pre- 
mises, for the use and occupation of which 
this action has been brought, are what is 
termed in this country a **JisMng-room ;'* 
and the question for the decision of the 
Court, therefore, is, whether the owner of 
siuih premises is clothed with the rights of a 
landlord in England, or is only entitled to 
those privileges, with respect to priority of 
payment, which are conferred upon the 
** current supplier" by the 49th of the late 
King ; for 1 assume that the same rules 
which are prescribed by that act for the dis- 
tribution of the estates of persons declared 
insolvent, have, by the uniform usage of this 
country, been applied to the distribution of 
the effects of persons who have died insoU 
vent ; and that this custom has been sanc- 
tioned, in several instances, by judicial re- 
cognition. Now, if the point which is thus 
brought under the consideration of the Court 
had been a new one, it would, certainly, 
have deserved ai. ; received a great deal of 
attention from me; bat it has been so fully 
investigated, and so ably settled, by the late 
Chief Justice, in the case of Hunt. SlablK, 

. v. the 2\uslees of the estate 

June lOtlu 

A Judge is bound 
to follow the deci- 
siooB of bis prede« 
oesBors in office. 

i 1 




;t/.i i 


% ■%■■ 


I lr.2 4 



that case Mr FnJ ?" Judgment upoA 
ttvpJn I T ? '^ ^ ^"-''y sensible one) be- 

Posse4 fhi ^ P'-oP'-'etors of the former 

vail «;»K ^ '"^ *^"^® ^aws which ure^ 

P?y Co„rP''' '? other branches of i^,p. 

Mr* ^r"?^"^'"^. therefore, as I do w t h 

^^' Forbes, in his view of this sut'ecr J 

fh!/ .Y""^ 7"''^' ^^^^^« »» conformity to it 
that the plaintiff in this suit, is only LlklpH 

to share m the distribution of the coffee sjJ 
the ntestale as a current supplier 'fndi 

'nf th^ mV d'^- ^^'^ opportSrof d"i! 
Ting tftat my decision wou d have been *h« 

jam.. If my own opinion upon the ^le^t on 
had even been at variance wifh «L? ? " 

«f t'h.? H ^'^r ^'* reflection will convince 

AUT INCOGNITA " Frnm ♦»,« i- ^^ 


mains for me 
e so clearly 
gment upon 
I distinction 
e one) be- 
B to the fisli- 
^tures which 
>nd express 
ies; and he 
the former 
ress aa the 
cner of the 
other li^ht 
; to which 
y an acces" 
which prC' 
hes of sup- 
I do, with 
subject, I 
nity to it, 
ly entitled 
effects of 
r; and I 
of decla- 
been the 
' question 
at of ray 
nh which 
ith regard 
lives and 
he great- 
t ever be 


liar con- 
s existed 
lie other 
; and to 


ascribe that spirit of litigation which has 
been so remarkably prevalent among the 
members of this community. It is obvious- 
ly, therefore, of greater inif)ortance to the 
peace and happiness of any countrv that 
its laws should be clearly dejined, than that 
they should possess superior excellence ; since 
men may enjoy tranquillity and security 
under a code of laws by no" means perfect; 
whereas they never can be quiet and secure 
where the laws are obscure and liable to 
arbitrary changes. In other words, it is of 
much 1. i^s consequence what the rule is upon 
any giv^n subject, than that there should be 
some fixed and settled rule in regard to it. 
But it is evident that this certainty, so desi- 
rable and so necessary, can never be attain- 
ed if judges allow themselves to think that 
they are not strictly bound by the solemn 
determinations of those judges who have 
preceded them ; for if the decisions of a 
judge may be over-ruled and overturned by 
his successor, a new rule may be introduced 
by every new judge ; and thus variety would 
usurp the place of certainty in our system of 
jurisprudent^ By authorizing tile Chief 
Justice of I vfoundland to decide how far 
the laws of England can be applied to that 
anonialons state of things which exists in 
this island, the Imperial Parliament has in- 
vested him with a larger share of power than 
IS, perhaps, delegated to the Chief Magis- 
trate of any other British colony; and, hap- 
pily for the iriterests of this countrv, that 
power was lately committed to a man whose 
incorruptible integrity, firm independence, 
indefatigable industry, acute genius, and 
sound learning, eminently qualif-ed him for 
the discharge of the arduous and important 

questions depending upon local usage have 










been already determined ; and wherever 1 
find that a point has been exprf.ssly decided 
by him, J shall feel myself imperatively 
bound by his decision upon it. Nor do 1 
apprehend that his reasoning can often fail 
to convince me of the propriety of his opi- 
nions ; but should this ever happen in any 
case, 1 shall still conform my judgment to 
his decision ; taking care, at the same time, 
to state freely the grounds upon which I 
venture to differ from him ; in ord • that 
the party against whom 1 shall consider my- 
self obliged to give judgment, may, if he 
thmks fit to act upon ray view of his case, 
appeal to His Majesty in Council; by whom 
alone, as 1 conceive, such decision, if erro- 
neous, can be reversed. And until it shall 
have been so reversed, it will be regarded by 
me as a rule from which, though 1 may dis- 
approve of it, 1 shall not consider myself by 
any means at liberty to depart,—" Lapis 


adhering rigidly to this line of conduct, 1 
trust I shall accelerate the arrival of the pe- 
riod when the laws of Newfoundland will 
be as clearly ascertained, as well under- 
stood, and as satisfactorily administered, as 
those of the other parts of the empire ; and 
that I shall have the gratification to see the 
spirit of litigation decline, as persons daily 
become better acquainted with the nature 
and extent of their respective legal liabilities, 
and rights. 


ij ■ r 



iiiiatlii "nil iiirtiirifi 




I wherever I 
issly decided 
t. Nor do 1 
:an often fail 
' of his opi- 
ippen in any 
judgment to 
e same time, 
ion which I 
I ord ■ that 
[consider my- 
may, if he 
' of his case, 
:il; by whom 
ion, iferro- 
intii it shall 
regarded by 
I I may dis- 
2r myself by 
t, — " Lapis 
NDUs." By 
conduct, 1 
\\ of the pe- 
ndland will 
^tll under- 
nistered, as 
npire ; and 
L to see the 
rsons daily 
the nature 
al liabilitie& 

Ji HE liability of Government property in 
this town to assessment, under the 1st Geo. 
IV., c. 51, is the question submitted to the 
consideration of the Chief Justice by the 
following memorial: — 

To the Hon. Richard A. Tucker, 
Chief Justice of the Island of 
Newfoundland, Sfc. ^c. 4'c. 

The Memorial of the Appraisers under the 
Act of the 1st Geo. IV., c. 51, for the 
rebuilding the town of St. John's, and for 
indemnifying persons giving up ground for 
that purpose, 


That your memorialists were duly appoint- 
ed Appraisers under the said Act; "that in 
conformity with such appointment they pro- 
ceeded to value all the property within the 
limitsof the said town ; in the doing of which, 
your memorialists had some doubts M-hat 
were the limits of the said town of St. 
John's ; and, also, whether Fort William, 
Fort Townshend, and other buildings be- 
longing to Government, came within the 
meaning of the said Act; and in order to 
remove such doubts, they made application 
to Mr. Forbes, the late Chief Justice, for his 
opinion and interpretation of the said Act, 
who gave tli^MTi his opinion: That the town 
of St. Joh'A s was defined and laid down in 
a plan to b-; tound at Government-house, 
and design). it( J "A Plan of the Town of 
Saint John's '■' by the Act of 51st Geo. IIJ., 
cap, 4>; and that as the Act was framed 
for the express purpose of arresting the pro- 
gress cf fire in future, that the Government 
buildings were cqaaily protected with other 


June \Qth, 

Government pro« 
perty in St. John'* 
—,, a barrack 
—is nut liable to 
asseasment under 
the l9t Geo. IV., 
cap. 51. 

'riie general rule 
that the King is 
not bound by Acts 
of Pnrlianient, un- 
less he be parliciu 
larly named there- 
in, IS open to some 
exceptions ; for if 
the Act he pro» 
fesseUly made for 
the remeil!/ of some 
f)ri:at public evil, 
the advancement of 
religion, the encou^ 
ragcmcnt of learn' 
ing, or the support 
of the poor; if will 
bind tho King, 
though he be not 
named in it, 'if it 
does 710/ trench 
upon any of his 
established prero" 
gativcs, or directly 
tend in its opcra"^ 
lion to expose him 
to any j)ecuniarif 

n Vl 4Vr7'W'I»'.»i»«'' e .. , 







KRS under 4th 
©to. III., c. 61* 

property by Ihe widening the streets ; and 

bv the API.RA13. !^L. ff'^o'.nd SO taken away by an assess- 
ment on their property. Government could 
not shrink from a tax that was laid on the 
snhjectj jjarticularly as they partook of the 
protection afforded by the Act.-.Yoiir me- 
morialists delivered an account of the as- 
sessment on all the Government property lo 
Jus lixcellency the Governor, and demand- 
ed payment of him. His i^xcellency paid 

L'^'i'oon'Vo"'''''! '■'' ^^^ «ssessuient(amounting 
to 1229 105. 4d.) on the Government-house! 
XVavy-yard at the South-side, the Ships'I 
room, and all the public property that he 
considered immediately under his direction, 
but desired your memorialists to call on the 
Officers of the several departments for 
the assessment of the property under their 
^hai:g«, which tijey have refused to pay. 
*our memonalists beg leave to state, that 
the garrisons were not valued as fortifica- 
tions, but only in their value as houses, 
tenements, &c. Your memorialists exhibited 
their book of assessment to the Governor, 
;«;heri finished, who approved of the same. 
Ibat they afterwards laid it before a 
public meeting of the said town called for 
that purpose, where it was also approved of. 
Ihat It was also laid a considerable time 
lor inspection aMhe house of Mr. T/tomm, 
one of the appraisers, while the public were 
invited by advertisement to examine it for 
the purpose of ascertaining if their respect^ 
ive properties w€re correctly recorded in it ♦ 
many of the proprietors availed themselves 
of this opportunity ; others did not, where 
but two material objections are made, which 
were decided on, and overruled by Mr. 

Jf our meraoriali^ts, tlierefore, pray tfa^ 



he streets ; and 
Jnipelled to pay 
ly by an assess- 
vernment could 
was laid on tlie 
f partook of tlie 
kct. — -Your me- 
ount of the as- 
lent propnrty lo 
, and demand- 
Ixcellency paid 
le, the Ships* 
roperty that he 
>• his direction, 
i to call on the 
jpartments for 
ity under their 
jfused to pay. 
e to state, that 
ed as fortifica- 
ue as houses, 
ilists exhibited 
the Governor, 
i of the same, 
it before a 
wn called for 
) approved of. 
nderable tin>e 
Mr. Thomast 
e public were 
examine it for 
their respect- 
corded in it; 
1 themselves 
d not, where 
made, which 
ded by Mr. 

re, pray th« 



advice of your honour in the premises; 1?J23. 

whether the public buildings in question, so ^ ■- - m . ' 
assessed by your memorialists for the pro- Case submitted 
tection the Government buildings derive ^f •'>« Apphais- 
from the widening of the streets (the streets g*' "J^' "** ^'* 
having been widened in front of the ordnance- ''°' * °' ^^' 
yard, and other public buildings), are sub- 
ject and liable to such assessment? or whe- 
ther your memorialists must retrace their 
steps, and assess the whole town anew, to 
make up the deficiency occasioned by the 
non-payment of the sums in question ? 

Wm. Thomas, 

Alex. Haire, 

Henry Shea, 

Geo. Lilly. 
St. John's, 19th June, 1823. 

Upon the foregoing memorial, the follow 
ing Order was immediately made : — 

Let such notice of the application which 
has been made to the Courts by the forego- 
ing memorial, be given to those officers of 
Government who have refused to pay the 
several sums of money assessed upon the 
public buildings respectively committed to 
their charge, as will enable them to justify 
(if they shall think proper to do so) their 
refusal to pay the same, either by a written 
statement of the grounds upon which they 
conceive the property of the Crown to be 
exempt from the operation of the Act of the 
1st Geo. IV., c. 51 J or by personal appearance 
in this Court, on Monday the 23d instant, 
at 11 o'clock in the forenoon. 

R. A. Tucker. 

Supreme Court, 19th June, 1323. 

And on this day (the 23d instant) the 

Chief Justice 

question in these terms :— - 




W ■' 




Case Bubi))ilted 
Ly the AprRAls* 
BBS uniibt the lit 
Geo. IV., c. 51 


In considering the question which has 
been proposed to me by the appraisers, ap- 
pointed under the Act of the 1st Geo. IV., 
c. 51, for •* the rebuilding of the town of St. 
John's, in Newfoundland, and for indemni- 
fying pei-sons giving i^p ground for that pur-? 
pose," respecting the liability oi Government 
property to an assessment under the provi- 
sions of that Act, ] have found \i difficult to 
repress a wish that I might feel myself aur 
th«rized to pronounce that the appraisers 
were warranted, by a fair construction of the 
Act, in including property of that description 
in their rates ; for, in the first place, the 
events to which that Act owes its origin were 
so afflicting and calamitous to the inhabitants 
of this town, that it is impossible not to de- 
sire to extend its operation in their favour 
as far as possible ; and, independently of the 
warp which may thus naturally be produced 
upon my feelings, I am always anxious to 
concur in opinion with Mr. Forbes, who, i 
am told, was quite satisfied that Govern- 
ment property was subject <o this assess- 
ment (e). But whatever sympathy I may in- 
dulge for the misfortunes of this community, 
and whatever deference I may eatertain for 
the judgment of the late Chi^ Justice, J am, 
at the same time, deeply impressed with a 
sense of that duty which attaches to the 
situation I fill ; and I have, accordingly, en- 
deavoured to dismiss from my mind every 
circumstance which might tend to create an 
influence adverse to the faithful discharge of 
that duty. When legul points are submitted 
to me, 1 shall always form my decision upon 
them by the strictest and most inflexible re- 
gar*! to what 1 conceive to be the rules of 
Jaw applicable to them. It is, then, 1 must 

({) This was. however, it js tn ho obser^sd! nnl" r.i\ 
cxtro'judiciat o^miou. ' ~ ""' '"'^ 



Oil Avhich has 
appraisers, ap- 
i 1st Geo. IV., 
he town of St. 
1 for indemni- 
(1 for that pur-! 
of Government 
der the provi- 
i it difficult to 
el myself aur 
the appraisers 
Iruction of the 
liat description 
irst place, the 
its origin were 
the inhabitants 
ble not to de- 
en their favour 
mdentJy of tho 
y be produced 
Eiys anxious to 
^orbest who, 1 
that Govern- 
to this as&ess- 
athy I may in? 
is community, 
^ entertain for 
^Justice, J am, 
[iressed with a 
ittaches to the 
cordingly, en- 
ly mind every 
d to create an 
i) discliarge of 
are su bmitted 
decision upon 
t inflexible re- 
: the rules of 
, then, i must 

knff<*rVAf1 Antcf Art 


bbScrvfe, a settled rule of law, that the King 
is not bound by Acts of Parliament, unless 
he be particularly named therein (Black. 
Com. vol. li p. 185.) To this rule, how- 
ever, there are^ I am aware^ some excep- 
tions ; and, perhaps, the rule itself ought al- 
ways to he laid down with this qualification 
— ^that where the King is not particularly 
mentioned in a statute, he will not be bound 
thereby, unless the statute be professedly 
made for the remedy of some great public 
levil, the advancement of religion, the encou- 
ragement of learning, or the support of the 
poor; m either of which cases he will be 
bound by it> whether named therein or not^ 
provided it does not trench upon any of his 
established prerogatives, or directly tend irt 
its operation to expose him to any charge^ 
'J'hus, it has been decided) that the 5th and 
6th Edward Vi.) c* 16, which was made for 
the prevention of corruption in the buying 
and selling of public offices^ is so far binding 
upon the King, that he cannot dispense with 
the liability which the Act imposes upon 
persons convicted of an offence against the 
provisions of it (Co. Litt. 234, a. ; 3 Inst. 154.) 
So, also, it was solemnly adjudged in Uie 
Magdalen College case, that the 13th Eliza- 
beth, c. 10, which was intended to promote 
the interests of religion, by restraining the 
alienation of the property of the church, 
does extend to the King (11 Rep. 66.) And 
the same rule was recognized in the case of 
the King v. the Bishop of Norwich, and 
Others, which depended upon the construc- 
tion of the 31st Elizabeth^ c. 6, for the pre- 
vention of simoniacal presentations to bene- 
fices (Cro, Jac. 385.) But in these, as well 
as In many other cases which might be 
Cited totho aamo purpose, ti";3 statutes un- 
der which they arose did no^ infringe any 


Case submit'cd 
l)y iho Apprais- 
RRS under (he let 
Geo IV,, c. 31. 

IJ ■' 

i w 




Case Bubmilted 

If * 


branch of the Royal pieros:ative, nor subject 
the Crown to any direct imposition or bur- 

by ih. AppRAis- n * \^ ^'"^^ °"'y incidentally and coMaie- 
«Rs under the 1*1 ^f'^ ">»' tho King could be affected by 
Ceo. IV. c. 61, them; and yet their several objects might 
have been completely evaded and defeated, 
jMhey had been altogether inoperative npon 
him. It was, therefore, most properly de- 
termined, that he was bound by, although 
not particularly named in, them, i cannot, 
however, find a sentence in any book of 
law which has fallen under my observation, 
that will warrant me in carryingf the excep- 
tions to the principle that the King- is not 
bound by Acts of Parliament, unless parti- 
cularly named therein, a single point beyond 
what has been done in the cases ju^t men- 
thmed ; but, on the contrary, I perceive, 
that wherever a case does not fidl within 
any of those exceptions, the general rule is 
most strictly observed and maintained. For 
example, it is admitted that the King is 
exempt from the payment of rates under the 
43d Eliz. c. 2 (Nolan's Poor Laws, vol. 1, 
p. 65) ; and the reason of this exemption 
seems clearly to be, because he is not named 
in the Act (Nolan, p. 122). But the 43d of 
Eliz. IS, as IS well known, the foundation 
and corner-stone of our whole system of 
poor laws; and has accordingly received 
the most liberal construction for the ad- 
vancement of the interest of the poor, which 
the judges could possibly give to it. If, 
therefore, they could, in aw^ case, have been 
induced to depart from the general rule, we 
are authorized to believe that this was pre^ 
cisely the case in which they would have done 
it. Let us see, then, since the 43d of Eliz. 
and the 1st Geo. IV. are, from the objects 
for which thev orovide. pnunllu gntitlc^. /« y. 

itoeral tnterpretation, whether there is any 





ve, nor subject 
ositiun or bur- 
ly and oollaie- 
be affected by 
objects miglit 
and defeated, 
)perativc upon 
t properly de- 
i by, although 
m. I cannot, 

any book of 
/ observation, 
ngf the excep- 
B King is not 

unless parti> 

point beyond 
ises jujvt nien- 
^ I perceive, 
ot fail witbin 
eneral rule is 
ntained. For 

the King is 
ites under the 
Laws, vol. 1, 
is exemption 
is not named 
ut the 43d of 
le foundation 
le system of 
gly received 

for the ad- 
i poor, which 
fe to it. If, 
•f€, have been 
eral rule, we ' 
Ihis was pre^ 
lid have done 

the objects 

pnf.ffjgfl. t{i /; 

there is any 



EKs undf^r the Ut 
Geo, IV., c. 61, 

expression, or w ord, in the lallv)', whiHi will 1823. 

enable us to push its operation bevond tlu- "^-^mm^^^^m^ 

limits winch have been assigned by Courts ot Case submitt.J 

J^avv to ilie former. Now, the 1st Geo. 1V» ^^ "'« Appraise 

directs, that the assessment to be made in ""^ """'"" *' 

pursuance thtTeof, " shall be paid nil and 

*• every t! ^proprietors of houses, uents» 

"lots, and parcels of ground, ig and 

" bemg Within the limits of the saiu town of 

*' St. John's ; " and the 43d of Eliz. enjoins 

the overseers *• to raise weekly, or other- 

*' wise, by taxation of everv inhabitant, 

'* parson, vicar, and other, and of every oc- 

••cupier of lands, houses, tithes impropriate, 

*' propriations of tithes, coal mines, or sale- 

"able underwoods, in the parish," such 
sums of money as may be necessary to ac- 
complish the object of the Act. l\\ there- 
fore, the King is not included under the 
designation of an ♦' in/tabitauf," or the *'oc- 
cupier of lands and houses;' 1 cannot disco- 
ver any reason for including him under the 
description of the '' proprietor of /i(,uses, u- 
nements, lols, and parcels of ground" Indeed, 
the two statutes appear to me, with reference 
both to their subject-matter and their phrase- 
ology, to run " quatuor pedibus'' with each 
other; and I am, consequently, most deci^ 
dedly of opinion, that the same construction 
which has for more than two centuries been 
given to the one, must also prevail in re-^ard 
to the other. But it may, perhaps, be urged, 
that the Kings exemption from the poor 
rates m i^ngland is ^personal orivilege, and 
that arguments drawn from it ought not to 
be applied to a question relating to Govern- 
*"A°' P!:oP^'*ty not in the ;7crjowa/ possession 
of his Majesty. To this I answer, that it was 
always holden,;?roci«/e?tt*w, that property 
.'^"vPJca oi^iviffjur mepuoiic use, is not sub- 
ject to assessment under the 43d of Eliza- 








1^1 23 





■ 1.8 

125 iu 



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Case ftuhmitled 
by the AppKAis. 
KRS under the 1st 
0««. IV., c. 61. 


|»etli ; and the question which arose uport 
that Act was, wliether the King was not li- 
able to the assessment on account of hrs 
benejicial occupation of the premises? (/t) 
1 he argument against the assessment of 
public property, is, therefore, stronger when 
It IS not in the personal occupation of His 
Majesty than when it is; and I confess that 
the doctrine, that public property nhall be 
taxed for the promotion of any public object 
whatever, is wholly new to me. and seems 

LT*? - ,^^ ^^«"r^'ty like that of taking 
from the right hand in order to pay the left 
Jn facti the appraisers Mrere so far »ware oi" 
this, that they have not rated the Court- 
iiouse^and other pnblic buildings, which they 
considef as belonging to the totvn \ but the 
distinctibn which they thus endeavour to 

pfiblu of Newfoundland, is not, 1 conceive, 
warranted either by the language, the inten* 
tion, or the spirit of the Act under which 
they derive their authority ; and it wonid I 
npprehend, require a perfectly clear and ex- 
plicit enactment to subject a'barrack, erect- 
ed for the protection of the town against 
enemies, to a contribntion to any expanse 
which mrty be incurred for the sake of ore- 
serving it from the destructive effects of 
fire. In the absence, therefore, of any such 
enactment, I have no hesitation in declaring 
that this Court has not the power to coerce 
the payment of the assessment which has 
been made upon any part of the property 
lielongmg to the Government. If such pay- 
ment has been voluntarily made in one in- 

(*)rpon Ihl. piiaeiplf I tboold bav* held, that fli. 
oMMpiara af Gov«rniti«nt bonaai, aa tba Aaaistant C«!»! 

uftdar ..milar clronmalancaa, war. liabla iXuMwrnatTf 
the rata had bMn M aii««<.i »n. — »«• ■■ wsmaoi,!! 

^hicheo«idb.f.iriiii;iirb7te*;;tfr "' *°" "*'"• 


HE fcoURT, 

ich arose iipoii 
Jng was not li- 
accoiint of lirs 
B premises ? (k) 

assessment of 
', stronger when 
iipation of His 
i I confess that 
iperty fthali be 
»y public object 
ne, and seems 
B that of faking 
to pay the Jeft. 
80 far »ware of* 
ed the Codrt • 
igs. which I hey 
totvn I but the 

endeavour to 
ptiblie find the 
»t, 1 conceive, 
age, the inten- 
t under which 
nd it wonid, I 

clear and ex- 
iarrack, erect- 
f town against 
> any expense 

sake of pre- 
ve effects of 
B, of any such 
n in declaring 
^er to coerce 
It which has 
the property 

If such pay- 
ide in one in- 

r« heldt tbtt lb« 

■AaaitUat Con* 

iptr, and «H|iti« 


of iiiii Miurt 


stance, it must be considered and accepted 
by the inhabitants entirely as u boon ; and it 
cannot, consequently, be converted into a 
precedent upon which a claim may be 
founded to compel the payment in other 



In the matter of ThomasTkistle's Estate. 
Memorial and Order thereon. 

Tq the Hon. Richard A. Tu<;kkr, 
Chief Justice of the Island of 
J^ewfoundland, 4 c. 4 c. 4 c. 

The Menjorial of JoHi^ Hili^yakd, of St. 


That since the decease of your mcmori<)l- 
ist's mother, who died about fourteen years 
ago, and who was entitlecl to some proper- 
ty in Harbour Grace, under the intestate 
estate of her father, Mr. T/uimas Thistle, 
your memorialist has principally supported 
liimself by his own exertions, aiid his sister 
lias resided with Mr. M'Kie, her uncle: 
that the property of the late Mr. Thistle has 
been divided among his children ; and that 
part which would have been your memori- 
alist's mother's, if living, has been under the 
care and management of Mr. JU'Rie^—youv 
memorialist's father being now, and for a 
nunjber of years past, in a state of in- 
sanity : that your memorialist having passed 
his minority, and conceiving that no person 
uias a greater interest in the property, which 
roust come into his hands and that of his 
sister's, whose prospects in life he is desi- 
rous of promoting, nrayg that, as hh ikther 
is in a state of insanity, and not likely to re- 

J'.inc 2\lh. 



T,, ;i 

18<>3 * 

«.s &u... »h«rem menlio.ed ; and «^IUver p'm^ " 
St. M„,.,e,hj^- «-"*»», Jin. 

forth ii alattrad Lrd"f^^^^^ 

instant, *'' ''*"'»l'" ''»«« ""e lOth 

fori to CoM?f f"^''.,')'"'""''"*'' •« 'aiJ be- 


June ^Oih. 

Order of Courf, 
•ppoioling Guar- 

In the matter of Jane HiLtVABo, an infant; 

•ppoioling Guar- Frp 

diaoa of the person fr . ^**' Ordered that Neu'mn» W' 1, 

«"d .Slat, 'of .„ Holies, and Jamei Cross £aTL '' '^^'^ 

-fa-t. ercd by an authority S^".?!* o ^ ?'»P«.^- 

eme court, 

lie management of 
te, for the purpose 
will ever pray. 
llLLYAOD, jLn. 


al the C7n€/Jus- 
ler:— . 

•rayer of this me- 
mber of facts set 
o the Chief Jus- 
ip; date the 16th 

the fact of Mr. 

Jeft this country 
ssion of his wife's 
or more crediblQ 

nts be laid be- 
ish the fact, tbaft 
ved at the age 

l^e directed to 
th, of all his re- 
t of the propcr- 
fam Hillyard, M 
i>ur8ement8 on * 
the sums paid 
^iy each partir 

and Uie oidev 

BD, an infant; 



' Seal oftlw; 


3. be 

' • ■■ MfiWPOVNDLANO. ' * 

Court, to take oharge of the property be- 1823. 

longing to Jam Hillyard, during her mino- *^ ■ , ■ ' 
rity, and to receive the rents, Reissuing lo ih« matiar of 
from the same, subject to the direction of Thomas This. 
the Court with respect to their appropriation. ■"•■*■ J^iiait. 
ll was further ordered, by consent of the 
parties, that the accounts between Peter 
JtrKie, Esq. and John Hillyard, shonid be 
submitted to the arbitration of Messrs. 
Hoyles and Crots ; and that, in the mean 
time, Messrs. Hoylea and Cross should lease 
the property at present vacant. 

The Owners of the Brig Lady Hamilton, 

appellants, and 
IViLLiAM Stafford Pope, respondent. 

Jff^ER Curiam. Before this case was ar- 
gued upon the appeal, I was strongly dispo- 
ned to think, from an attentive examination 
of the transcript of the proceedings of the 
Court below, that fhe judgment there given 
must be reversed. 1 was, however, happy 
to listen to every argument which could be 
adduced in support of it; and 1 have since 
given to those arguments all the considera- 
tion which tliey appear to me to deserve. 
I am, therefore, now prepared to deliver my 
opinion upon the question, with a full know- 
ledge of ail the circumstances connected 
with it. 

On behalf of the appellants, it has been 
very justly argued by Mr. Simms, that the 
))lamtiff below ought only to have succeeded 
in his action upon one of the following 
grounds : — 

1st. As having a speciallien upon the brie. 

July 9d, 

By lilt liw of 
£oglaiid, ther« cao 
be no lien on • 
■hip in III* port to 
which abe bclongi. 
And Ihe legal, i.t. 
Ih« regi$teted own. 
tt of a ahip ii not 
liable lo pay for 
repairs made, or 
atorea furoitiied, 
under lh« aulhiiri. 
ty. end for tht ba- 
fltfit, ol auotbtr 

hty as pari-owntr. 





W /' 


Mlir. Because the defendant below. 
o:^..^,rr ^^/^;^\^^^^h fn agent, had. by his conrne 
iXu^uioS ,%^r "^' '«»^«'^^ himself liablea8a;,nn. 

W. 8. PofB. .^nd the proper mode of trying this case 
will, therefore, be to inquire how far. under 
the circumstances of it, the plaintiff below 
can sustam himself upon anu of these 
grounds. ^ 

Upon the Jirst point I shall shortly re- 
inark, that it seems to be clearly settled that 
by the law o( England, («) th^re cannot be 
a lien upon the ship in the port to which she 
belongs. Thus Lord Mansfield, who is re- 
ported to have said, (b) " that a person who 
supplies a ship with necessaries, has not 
only the personal security of the master 
and owners, butalso the security of the spe- 
cific ship, afterwards admitted (c) •• that 
work done for a ship in England 19 sup- 
^ posed to beonthe/»«r*oaa/creditofthe 
. employer. In foreign parts the master 
••may hypothecate the sbi>.'» This princi- 
ple has, mdeed, been recognized in several 
other cases; and I have, consequently, no 
difficulty m pronouncing that the plaintiff 
below had no lien upon the vessel, for the 
supplies furnished to her by him. 

With respect to the second point, it was 
most satisfactorily proved, by the evidence 
given at the trial of the cause, that Mr. 
Mennett, who is the real appellant in this 
suit, had agreed to pay a certain sum for 
half of the brig, then on the stocks, after 
m should be completed andftted out by Mr 
Douglas. This was, therefore, most deci- 
dedly not an absolute agreement to purchasa 
a part of the vessel as she then was ; but 

la) By Ihe Civil Law it it oiherwiir. i 

W *o wilkwt w, Comieha^l, 3 Douf , lou 

* • 

l^m COUBT, 

defendant below, 

had, by Im coiirve 

iself liable as a prin- 

o( trying this case 
[uire how far, under 

the plaintiff below 
pon any of these 

I shall shortly re^ 
clearly settled that, 
[a) there cannot be 
le port to which she 
nsjield, who is re« 
' that a person who 
cessaries, has not 
irity of the master 
security of the spe* 
idmitted (c) •« that 
I England iff sup* 
'sonal credit of the 
parts the master 
i^" Thisprincir 
:ognized in several 
consequently, no 

that the plaintiff 
le \essel, for the 
►y him. 
^nd point, it was 

by the evidence 
! cause, that Mr. 

appellant in this 
a certain sum for 
the stocks, qfter 
Jilted out by Mr. 
•efore, most decir 
nsent to purchase 
e then, was ; but 



W. 8. PofB. 


Dou|« 101. 

tnefely an nj^rermertt to become the future 1823. 

piircliiisof of hnlf of her, at a stated sum, ^ ii- , ■_ * 
upon till' continife/irj/ of her being comple- Ownenof »h« bri^ 
ted ami littef! out by Mr. Doughs. IimIc- I-ad^Hamiltoic 
pernlenlly, then, of the provisions of the Re- 
gistry Act, Mr. BennetCs interest in the ves- 
sel could not take place until after the hap- 
pening of that contingency upon which it 
entirely depended ; and as all (d) of the arti- 
cles for which this action was brought, were 
required to put the vessel in that condition 
in which Mr. Bennett had agreed to become 
the purchaser of a proportion of her, his in- 
terest in the vessel, if it had depended solely 
upon thai a«^reement, must necessarily have 
commenced subsequently to the delivery of 
those articles ; and he could not, conse- 
quently, upon any pretence whatever, have 
been held liable for the payment of them. 
But the respondent contends, that a few of 
these articles were delivered after Mr. Ben*- 
nett had actually become ihe registered part* 
owner of the brig'; and he conceives that for 
these, at least, Mr. Bennett must, at all 
events, be responsible. According to this 
doctrine, then, the registered owner, of a 
vessel is bound to pay for everything which 
is furnished to her, without any regard td 
the circumstances under which the articles 
may have been supplied, and cannot even 
repudiate a contract entered into in relation 
to her by a stranger without his authority or 
consent. But this doctrine is certamly noft 
law. The title to a ship, says Lord Chief 
Justice Abbott {e), may furnish evidence that 
repait^ are made, or stores furnished, under 
the authority, and for the benefit, of the 
legal owner, as, in fact, they generally ares 

{d) This wu dUtioetlj adiDittod bv IMa. id •xavinm 

(«) lo bif work M Sliippbr, p. ai^ 

p t 


I i 

lU. n 


v^.l^X^ «»«t it doe. no more. a„rf .k . 
P-HT^?^. wear that ti.ey weri m./l.^"'^/^''*^' '^ »* 

W.8.PO,.. able. Tit:/&-[,^''" "ot bern^e^' 
?'«terecJ in the name of Z T f"'*'' «"*J «•«- 
|mervai between T,! orde, T""^^'^'^ '" ^'^^ 
h tl^e seller, and the rl.l^"'" '*°''^«' &'^en 
»>oard. the purchaser of^hi !/ • "'^ °^ ^''^'n «« 
»ot to be rLponsfble for ., "** "*?« '•«'«! C/) 
^as the legal ouner of ,V^'"' «'^'»«"g'i be 
stores were del veJed on f '"?"' ^'^^^^ the 
^hat parr, there/ore of thp?"' ""^ 1"^'' ^o 
«nand which is founded „''''°?'*^"*''' *^^- 
of some of the art c es^l ^? *''^ ^^^'^^ry 

been registered in Ihe^i^ J''" ^"««^' ''«<i 
-^o^j^lns 4- ^^«„ '" ? "^•"es of Messrs. 

tfcat.the articles had be^nLf^'ly P''°^^'^» 
previously by Mr. nou7/TlT^ '«'"*^ ^""6 
«d to pnt the vessenf .l'!"'''^^''«'ntend- 
«?»t which forme I Ilrcon! H ''^'- "^ ^'^"•'P- 
price which Mr. Be^^^^T^^'^^'on for the 

for the half of her i rfl^'^*'^.''^^^ «« Pay 

.how ii ia po^^^ble CO 5rsti"„^- 1" ''?^^' «*^« 

from that of TrewheL J"i;"^"'«'^ *»»« ease 

<be authority ofThei.uif ''"'*• ""^ ""dcr 


holding, that Mr. ^S«^// J""^J"«t'fied in 

^'^y action ^^part.72TofthlL''^ ''^^'« »« 
it remains th*.n V i ^ '^^ *'''^- 

'•WDg conducted bimiS?'. * ^"""."d of his 
manner as to incur tKi-i "*'*"' '" »"<-li a 
Md .he answer tt mtt' °'%P^'^P^, 
be dravn from the „ S """' ""doubtedly 

""ough the whole, I ViliT;''?"' «ra»elling 
• •mallportionof f Xh"y*»« "ywlf lo 

»«lll COURT, 

nd. therefore, i( Jt 
«ade or furnished, 

(oMhe benefit, of 
»'«" not be answer- 
> was sold, and re- 
: PU'cbaser, in ihe 
••|or stores, given 
s'lip was held m 
•em, although be 

vessel when the 
oard of her. To 
respondent's de- 
'pon the delivery 
the vessel bad 
"les of Messrs. 
«e aflbrdfl a com^ 

clearly proved, 
dered some time 
' state of equip, 
aeration for the 
• agreed to pay 
^t, in fact, see 
?">8h this case 
^e- and under 
'nt which Was 
'"y justified in 
8 not liable to 
? ort'ff. 

'sidered, whe- 

r^i in such a 

»ch, as 1 mjl 

»t travelling 
e myself to 
nceive ia dem 



€isive upon this point. Now, Mr. Douglas 
informs us, that he agreed with the piaintilf 
for the work, telling him that he had sold 
half the vessel lo INIr. Bennett. That he, Mr. 
Douglas, was to fit her out, and that when 
Jit ted out, Mr. Bennett was to pay a certain 
feiim for the one-half share of the vessel. 
This, then, was the representation, upon the 
faith of which the respondent agreed to fur- 
nish the articles which Mr. Douglas was in 
want of; and every one must see that there 
IS nothing in this representation from which 
the respondent had a right to infer that Mr. 
Bennett would be liable for the payment of 
the articles which Mr. Douglas was con- 
tracting with him for. If, therefore, the res- 
pondent did, unforliinately for himself, en- 
tertain such an opinion, he, undoubtedly, 
acted under a great mistake, and every one 
must feel sorry for him. But there is no 
ground \yhatever, either of law or equity, for 
transfeiring the consequences of this mistake 
to Mr. Bennett, who was, to all intents and 
purposes, a perfect stranger to this con- 
tract at the period of its inception ; and al- 
though, during the preparafion of the arti- 
cles, be had some c<immunicaliuns with (he 
respondent about them, yet he never said or 
did anything which went beyond the line of 
bis duty as an agent, in which character he 
bad, on other occasions, acted for Mr. 
Douglas. 'Ihe respondent seems, thenj 
through ignorance of the law, and from a 
very negligent omission to acquaint Mr. 
Bennett that it was bis intention to look to 
him for payment of the articles, to have 
brought himself into the conditiou Jn which 
\ye now stands, without the slightest fault on 
the part of Mr. Bennett; and, consequently, 

1/ a Incifl mnaf fall nrtAn avia <«r «k«-- . «: 

It oHghi, upon every principle of, juflUcc,. t« 



Owiiem of ihf hrif 



W. S. Pope, 



%l 1 

m,. , , '""""«"-"»,. coo... 

low niUKl be ^isL^j""' "' "" <<""•/ be- 

ea'ed several witnesses Jh *''^ •''"'y. and 
and examined. ^^* "^^^ ^eie g^.^,^^ 

^he dtt;7t d"'^L'r-^ /'- inry for 


^«»ee ; and tl,e 6y./.>XL^ '^'/'^ '« ^^^^^e- 

^fneral and iiniversu? .^l^'l*J"'•^ 'i'/ie 
ne.;fhl.oup.-...s c Znp ' ""^ ^« '"J^'-e our 

P'y they«.,, of he St'';/'^"''^^''^^' «P^ 
«"« determine whether ih. J"? /^''''^ye. 
been <,„i„, of a vioS of!t 't."^^"* ^«^ 
^*/er/.e// V. Cotter turned m,nn ?'*^^^8eof 
the necessary having i ''P'* ^'^e fact of 

;^ell waadnj ind^^VaMl.e'r"''' '^^^'^ '^^^ 
t^'tied, that the Dlaintiff! Vlf "^^ P'*operly de- 

noyance to which some »;, ''^'^'"'8: *^«an- 
posed by nuisancerfTL i"^*!^» ^^"^ ex- 


tigalion of damages Thjf' ^"^'^P^ '« wi- 

?»en to take thfaJi,,Jo^J"/^.<>"gK bo,^.; 

In liin cFiarM 
«« «»•« Jury, in „ 
•««"»» •.p.>n ,|„ 

«"'«' ihi-ni th«, ,1,^ 
•jue.lion, Whether 
• certain ilijuf 
•mourned lo « „„;, 
••nee or „„|, „„^,„ 

*«« fo the general 

«•« i« //je ;,/ace 

^inphineU of q. 

*«*e; /or (!,«,, „,p, 

•«»'.: »it un.l„ubt,.,||y 

tpcome an...,„n;« 

»n one coiuJhioo of 

■OUery, w|„c|, 

*«uM uoi b. 10 io 

RfiMB CODttti 

"U>y Mr. Bennett. 

;';f »>ot'' Ic-al and 
""s case, I ani of 
o^^the Cotfr/ be- 

initisance. 7?ow 
? "'e. jury, and 
"0 were sworn 

ed th 

ca'ied a great 

tl>e defendanrs 
'•«/>'>' to the fie. 
' <nen charged 

'lie jury. 'j',,e 
>f law w, ih.^t 
» to injure our 


therefore, ap. 
("s principle^ 
defendant has 
J he case of 
'the face of 
"t before tha 

properly de- 
>t sustain h/a 

toting the an. 
« were ex- 

'cepf in n»i, 

>"gbt, bow; 
the parties 



the same inconvenience which would nmoiint 
to a nuisance where Iht're was more room 
and space, ought not to be ':on«idereU in that 
light, where the parlies are bundled and 
huddled together in such u way that it i^ 
scarctiy possible they can avoid cuusiuj; 
■oine annoyance to each other. 

The jury retired, and soon returned a 
vtrdict— damages ten shillings, withcostvtp 
b« paid by defendant. 






Robert E"ans, appellant, 


Thomas BuLLrv, assignee of the Estate of 

Thomas Congdon, respondent. 

JiR Curiae. Two e«ceptions have 
been taken to the judgment in this case by 
the plaintiff, in error. Tiie 1st, That the 
judgment is grounded upon a particular sta- 
tute not applicable to the circumstances of the 
case: and the second, that the judgment is 
contrary to law, ir -nucU as it was given 
against the appellani nn violation of the lien 
which, as factor of the bankrupt, he had upon 
the goods which formed the subject matter 
of the action. To the former of these objec- 
tions, it will be a complete answer, that it 
does not in the least signify upon what 
grounds the judgment was professedly given, 
provided i\\e J acts stated on the record be suf- 
ficient to warrant it ; and 1 shall, therefore, 
confine my observations to the second point' 
which involves the question, wiiether the 
appellant was i\\e factor, or merely the con- 
fidential clerk, of the bankrupt; for if he 
were the fnrmpr tlioro to ««# « oU_.i _/• 

doubt but that the judgment belov ip erro- 


Till* isifat clii, 
tiiiciiim bftwten 
« Factou and 

C'li'-HK, Of oilur 

HUflll. ID, llut Ills 

factor liHS ci-nain 
(luii«>H iiDjiiiSftl on 
iiiin, anil i;. fi,t>. 

j' ct lo ff'riain le- 
f(8l lithilituH r«< 

■ iiltir.K frmti i|ii,||« 
dulJM, which Ilia 
cOHjiiIinlial clerk 
i« alutitfilicr ¥X' 
••"ip' friUH. And 
the lien «vhich ih« 
law Kives lu ih« 
factor upon tlie 
S«><>il« o< hit ptiu- 
cipal in hia pos% 
■«'^Bloll, is fuiindi-d 
eiiltrely upon iho 
conviiifration of 
the duiiea anri ji. 

■ biliiif.i »o which 
he is thua f ipoacd. 




iy certain, that the Hnin. . • ' '''»«9na»- 
^'tliout foundation if h ' ''^^^ '» ^"^'--^'y 
•cription of offent 'who "l^'**' ""' ^''"^ ^e- 
l^et us see. then ^th^t a r 'T''^ "•^«^'«'-- 
«raine how far h^^ -fr'""" **• ""^^ ««- 

'naster's affairs. Now ev^rJ ^^'"^"* ^^ '"• 

«nd. therefore hS^'^'"^'" t'«e^e«e;.a/,. 
«- both nge^V i? ,'o\'^J--;;^«';^U a facto'r 

Portant distinction may ex Lf 1 1/ ''^'^. '">■ 
^'ne of those distinction? ! ^'''^^" ^'^^n^- 
to be. that the factoiTD^l I '°"^^*""^« s^i^ 
«nd the servan bv n w by a com»iw,v>», distinction doL no t^r •^"^^'^ '"'^ 
for a servant mThave t^ '" '"""^^ ^««*^'' '' 
commission as a factor l*t *'''"® ^'ate of 
H with the character o^^^°"' "^ *^'°*^- 
tl.e latter maTun^ts^^^^^^ «"^ 

fixed salary in licuof fh' ^Y' ^^^«P' of a 
«»'J still con "nur^o n^f "r ^°'"'"'««'on, 
ses. a factor ' ^" '"^^^^^^ and purpo- 

>r« «ball not sea "c^h lon^^Tr ^^ ^ ""^ ^ ^^^'"'^ 
^'nced that the IJa/er.W^i^''^'"^^''^ ^on- 

^^-e bet.veen S rhamcteT;.''''' •''^^- 
tlie/ac/or'* *ei„o- ,ttA,r, 1? '^^ consists in 

iect to c/r«.f nn ir ' '**^t"'' «f«ou d ncff- 

W 5,^»»- •••«» PulF. 408. 

?l7p f "?"•??' * ^«"» p. 10. *•• "^' «"•«» '« I 

KKNit Court 

*o » Ilea J8 entirely 
\ were not that de- 
•« termed a factor. 
Mor is, and ex- 
*w, nnd in what 
a conjittential ser- 
nanageinent of his 
p»*y servant is aa 
8 not a servant, 
"om t\\G general; 
vant and a factor 
IS that a very im- 
8t hetween them. 
8 soniPtimcH said 
«y a commission, 
, or wages; hut 
J m many cases ; 
e same rate of 
out being cloth- 
ractor(A); and 
^'y, accept of a 
lal commission^ 
nts and purpo- 

ror some other 
»y ; and I think 
^e we are con- 
ssential differ^ 
••s consists in 
ny le^al liahi^ 
'ntial clerk is 
►I* should neg- 

re he ought to 
[« a person in 
0; in these. 

»P' 127, eitfld in 


and in many other rases of a similar kind, 
he would Uq olilin^ed to make good any loss 
which iiiH princi|ml might siiNtain through 
his dtiuult ; uiid he is «.fien compelled to 
advance large sums of his own fur the pro- 
tectum of the property of his principal, in 
order to discharge himself from the respon- 
sibility he would incur by his omission to 
perform certain acts in regard to it. in con- 
8i< eration, therefore, of the onus, and legal 
liability, so cast upon him, the law, which is 
always just, has furnished him with a lien 
upon the goods of his principal in hit pos- 
session, as the best security it could afford 
Inm for the repayment of the money it com- 
pels him to advance on account of his prin- 
?9V\ .'" * *'°'"**' *•*■ *'«n w derived from 
•1'/ 'f **'','*y' »"** '8 exactly co-extensive with 
n(ff). Jjut a confidential clerk, entrusted 
with the management of his employer's 
altiurs, can never be under a legal liibility to 
advance any money of his own for tiie bene- 
lit of his employer. This, then, is, as 1 
conceive, the «• crucial imtance " (k) by 
which we may distinguish the factor from 
the confidential clerk, viz., that the former 
has certain duties imposed upon him, and 
IS subject to certain liabiliiies resulting from 
those duties^ which the other is altogether 
txempt from. Having thus endeavoured t'> 
show what the true difference is between 
these two classes, 1 shall next proceed to 
inquire to which of them the appellant be- 
longs. And in order to determine this 
point, recourse must be had to the evidence 
given at the trial. From it we learn, that 
the bankrupt^ about the time of his depart- 

•.5?Ki^''.'* "• '•'^''"y ••«* '•" °>«y bt taken to b« eon. 
(A) Urd Bacoa't •• Nov oi* Organ UM," pp. 55-66; 






r ^ 




i,i ) 

» , t 

•*»" "* TH£ SDPKEIIE COU«T, 

polla!!'°'?hM\r"."y;.''S«e') With the ap- 

.~Js "ha. h""' 't "-^'"P-. fi"df„?a : 
lerwarcls that he could not return to New- 
foundland as soon as he originally expS 

•vouia devolve on him in conaeonence of 
"•c protracted absence of theTnkroot 

^'to" w""!. "' ""'' '-crease seetTe: 
vei to have been settled by the Darties- 

contfnied ,i''k;e"1he h^ ^^7'?"°"' <•« 
a7lrrT.SeS3r— ' 


damae-P« for J« *l***»'ned a compensat on in 




greed with the ap- 
act as clerk and 

year, at £36 per 
ikrupt, firidinff af- 
t return to New- 
riginally expected 
int to apprize him 
J, and at the same 
crease of salary 
►nal trouble which 

consequence of 
of the bankrupt, 
rease seems ne- 
by the parties; 
>Iaintiflf in error 
y raised to £lOO 
' expectation, he 
>ks ofthebank- 
and to transact 
im as his repre- 
t. Js it possible, 
ne to call a per- 
e sense in which 
i>e understood ? 
ed himself care- 
Jffice, could the 
^mpensation in 
ionetl by such 
3uld the appcl- 
r any circum- 
tnployment, to 
>c security and 
property? It 
he could not ; 
lion, that his 
ttferly without 
luentJy, affirm 


Bladeston & Wife against W. & H. 

J HIS was an action to recover £lOO of 
rent for the farm called the ** Grove." The 
lessees had covenanted to pay rent in lawful 
money of Great Britain, and had tendered 
payment for the last year in dollars at 5*. 
which were refused by the agent of the les- 
sors. The Court held that payment in dol- 
lars at that rate was not s* -'atisfaction of the 
lessees' covenant ; and . .at, therefore, as 
the tender was not a legal one, judgment 
must be entered for the plaintiffs. 



AuguU Ath. 

A tender of pty- 
mtot in Spaoifh 
ii not lufficieDt 
where the party 
has covenanted for 
payment in lawful 
money of Great 
Britain, [Se« 
Uany v. Gaden, 
ante p. 336.] 

Trustees of Langley against Trustees of 
Darrell & Campbell. 


HIS case gave rise to a question upon 
the construction of the Register Act ; and the 
Chief Justice, in consequence, deferred judg- 
ment to another day. 

And on this morning, the llth inst.. His 
Honour delivered the following decree : — 

Upon the hearing of this case, 1 was 
strongly impressed with the idea, that the 
ZAth George 111,, c, 68. opposed an insu- 
perable bar to the plaintiffs' claim; but, as 
the transaction upon which it is founded 
did not appear to have been entered into 
with Q.ny fraudulent intention to contravene 
the objects of that Act, 1 was unwilling 
to give judgment against them until I had 
ascertained, by a careful examination of the 
Act, and of the various cases which have 
grown out ofit, that it was impossible for 
me to pursue any other course without a 
violent departure from those principles by 

AujuU 4/4. 

Wh*r» a con. 
tract has been en« 
l»red into for the 
transfer of proper- 
ty in a reaeel, 
which ia void from 
a non-compliane* 
with the proviaions 
ofthe registry acts, 
the Supreme 
Court cannot, un- 
der its powers aa 
a Court of equity, 
enforce a complin 
ance with the terms 
of auch contract, 
or aflfurd any re- 
lief to the parlio0 
concerned In it. 


lb' ^f 

> i i 



La Ms LBV 


Tfogifei of 
Darkkll ifc 



t>on Of that importC statute "" ^■"^^^'•"^• 

«'>e early part « • ih ,-/ /i V"*'' '^*^»« •' ^n 

for Xr50. payable Tn L^Tf ^ ^'""'/^ 
liiHt yean'^and under 'is ale or'"^"*"" «^ 

transfer d„ K',"- - ndorsernent of 

provisions of the A? to whTKiT"'^"^ **> »''« 
referred. A< a s.Wisii ^J''^ '• ^^^ea'readv 

a proportion of ttr^^^^ '^^"^^ ^^^^^ P^*^ 
having. afterwardr^rttrteZr^i' ^"' 
«''e was. unfortunitrlv llZ 1 r *? ^^«' 
mainder of the nnrnh.J ^*'^*"*^ ^^^ re- 
Paid. and. al o bSth!"T"f^ ^^^ *>^e« 
legal title of owner^WunL^ ^^^"'''^^ ^ 
anqe. ^rith the forms nfJ 'l '> ^ *^«"^P''- 
try Acts. Und^;.!*"'*^^^^^ the Regis- 
the imoh^ncyVZltlrf'^^ transaction 
and the trus, Jes of the vSt n'"^ ^'"^^ ^ 
from the trustees of tL t S"^ "**** demand 
"pon the ba^^ce of !l7^"**'n -^ ^'^'^^^d 
-W-b still rlmSL^U'^airtaT^^^r^ 
call upon this Court to IVL '^* ^^^^ 
made under the circLl?-^ "? * ^^^^^ract 
cribed:; and the ohp^T? T' ^^'^'^ ^^ 

the first day ^JaaUmiyL^l"!?;^^ *"«^ 
or e«fectual for ob v nur^n. VJ**" *** *«1'«'' 

coatrMt, Of agreement for trZrl^!?!^* 
I'-l^ III iupi. awp orvew^sMrirm'Td; 


well as Courts 

ilieir construc- 

called upon ta 
owing facts : In 
en/en 4- Lan^hv 
rell ^ Campbeli 

Hie autumn of 
'«?f or agreement 
leceived posses- 
there was nei- 
indorsement of 
required by the 

eriod they paid 
e-money; and 
vessel to sea, 
before the re- 
>ney had been 
ad acquired a 
hy a compli- 
3 by the Hegis- 
he transaction 
» took place; 
» 00 w demand 
es A dividend 
that is, they 
•cfi a contract 
' herein des* 
Pefore, is^ ha^ 
^.J^w, the 
WI., c. 68< 
'act, or agr^e. 

any ship. or 
' m»i|e» after 
atsoirer,^ ei« 
icb transfer^ 

Ml be made 


by bill of sale, or instrument in writing, con- 
tamm^r such recital as prescribed by" that 
clause; and where an alteration of property 
takes p ace in the port to which the ship be, 
longs, the 2Gth Geo. J II., c. 60, requires an 
J indorsement upon the register, the form 
of which IS prescribed by the 15th section 
of the 34lh George J J J., c. 08, which also 
requires such indorsement in the case of 
contract or agreement for sale, as well as ab- 
solute sale, and renders it essential to the 
validity of the sale, contract, or agreement i 
for It enacts, "that such indorsement shall 
from and after the Ist January, 1795, be 
made in the manner and form hereinafter 
expressed, and shall be signed by the person 
or persons transferring the property of the 
said ship or vessel, by sale, or contract, or 
agreement lor sale, thereof, or by some per- 
son legally authorized for that purpose by 
him, her, or them ; and a copy of such in, 
dorsement shall be delivered to the person 
or persons authorized to make registry and 
grant certificates of registry, otherwise such 
sale, or contract, or agreement for the sale 
thereof, shall be utterly null and void, to all 
intents and purposes whatsoever." Jn what- 
ever light, therefore, we may view this trans- 
action, whether as an actual sale, or only as 
a contract ov agreement to sell, I am bound 
by these two clauses, and by the Interpreta- 
tion given tt) them by Chief Justice Abbott, 
m his work on shipping (a), to declare it 
null and void to all intents and purpose* 
whatsoever; and it is almost unnecessary 
for me to remark, that the Courts of equity 
have evinced as strong an inclinatioS as 
the Courts of law. to support and uphold the 
principle and policy of the Reffistrv Ar*« 
ttow, then, J may ar?., is it possible for tliis' 
(fl) Sea Abbott on mcrcliKUt abipi, p. 44, in nolaa: 



Tiusleei of 



Trustees of 

Darrbll * 



ll I 




Trustrei of 


Trustees of 
Darrbli. & 

August 16th 


A tenant cannot 
4i>|Mi(e his land* 
htfU'a iitJc 

l^^^^^sL ^ >• 

^^^^DHIB BR 



shall^ni h ^*»^?^,^»"^«J'^« positively said 
shall not be valid or effectual, for anJ pur- 
pose whatsoever either in law or e'quity ? 

;^ of/ lu'^T?' ^^ *''^'' '^"^ «^an it afford 
re Ieftotheplaintiff8,orcomplaitiant8,in this 
suit, who set forth in their bill an invalid 
sale or contract for the sale, of a vessel, 
admit a partial payment to them under it, 
»nd pray the Conn to assist them by its 

r2fl™ ; ^'"^ ?P^^ ^ investigate, reason .and 
reflect upon this question, the more satisfied 

rn!?. c "^ ^'"^ •raP'-ess'on respecting the 
merits of it was correct ; and having now 

1^ wif • '® "° l""^^'' **»« smallest motive 
to defer giving judgment for the defendants. 

William Avery against Nicholas Kent. 

t?thi^nT • ^/^'i"^' '^"' ? ^"^ '" answer 
• UA P'^l?*'^^ demanrl. the defendant 
wished to dispute his lessor's title, but was 
immediately stopped by the Court. It is a 
pnncpU of English law, that a tenant can^ 
not controvert the title of his landlord, or 
set up one in opposition to it. There is in 
this case sufficientproof of the holding: and 
jndgm«it mast, therefore, be entered for the 


E count, 

legal or equlta- 
jct to a tranaac- 
positiveiy said 
lal, for any pur- 
few; or equity f 
w can it afford 
•lairinntsjn this 
' bill an invalid 
e, of a vessel, 
them under it, 
ist them by its 
ayment of the 
i to be due to 
te, reason ,and 
! more satisfied 
respecting the 
I having now 
ouht from my 
mallest motive 
he defendants. 

:holas Kent. 

and in answer 
lie defendant 
title, but was 
'ourt. It is a 
a tenant can- 
landlord, or 
There is in 
folding ; and 


£x parte, Timothy Hooan in the matter of 

Stabb, Preston, Prowse & Co. 


'ER Curiam. This petition, in sub- 
stance, sets forth that the petitioner was 
in possession of certain bills of exchange, 
drawn at Kenews by Stabb, Preston, Prowse 
4* Co. for servants' wages, which had 
been returned to him under protest : that 
in order to obtain payment of those bills 
he sued out a writ of attachment against 
certain property belonging to that firm ; 
that during the pendency of his action 
a proposition was made to him by Messrs. 
Brooking, Cross ^ Tasker, who had been 
appointed trustees to the estate of a branch 
of the said Jirm, which had been pre- 
viously declared insolvent, to pav the amount 
ofthe bills held by him, together with the 
expenses thereon; that relying upon this un- 
dertaking on their part he immediately dis- 
contmued his suit; and that the said trustees 
nave since, in violation of their engagement, 
refused to pay him the expenses incurred by 
the protest ofthe bills in question. 

The facts disclosed in this petition are 
generally admitted by the trustees, who con- 
ceive themselves, however, restrained by a 
JutJgment of the late Chief Justice (in which 
Mr. Forbes refused to allow the expenses 
upon protested bills for servants' wages to 
rank as a preferable claim) from paving the 
petitioner the expenses upon the bills he 
holds, unless he can obtain an orrf^r from 
this Court to aothorize them to do so. Two 
questions, therefore, arise upon this case. 
VIZ.: 1st, — Whether the trn.Hteefs arc not -* 
all events, bound to fulfil theirengairement 
with the petitioner ? and 2dly, admitting 



September 4th, 

Tfie flinctioo of 
Ihe Suprfine Cnu't 
(tiven In the poy- 
mcm of ilip vxpen- 
tea attrnilinK liio 
priilest of billii 
drawn for llie pay- 
niRiit o( srrvants* 
wagea ; whrra it 
appea'ail (hat • 
auil for tha reco- 
vfry of Ihe amount 
of »uch bills had 
been relinquished 
upon an express 
undertaking by the 
trustees lo pay th« 
ssme, together with 
the expense! iherf 



& Co 



Ui / .' 



! f 


their engagement with him to be positively 
^^rte^RlIZr, 2°^'J}S "?«« l^em, whether this Court can 
»» »!•• mititr of sanction the payment of the expenses upon 
Stabb Pres- these bills as a charge upon the estate of 
ton.Prowsb ^tabb, Preston, Prowse 4 Co. of the same 
degree as the payment of servants' wages ? 
Upon the first point, 1 have not the shadow 
of a doubt. The trustees contracted with 
the petitioner, in consideration of his with- 

f!r''".^M*'*^. ^*^*'^'*' *® pay '"m the amount 
ot the bills m his hands with the expenses 
thereon ; and if, in the formation of this con* 
tract, they have exceeded the scope of their 
regular authority as trustees, they are. upca 
a we -established principle of law, (a) per- 
sonally liable upon it. Suppose that aa 
executor should promise, in writing, a cre- 
ditor of his testator, who had commenced a 
suit against him, to pay the debts and costs, 
in consideration of the discontinuance of 
the action by the creditor; and that, after- 
wards the executor was obliged to expend 
the whole proceeds of the estate to satisfy 
judgment-creditors, without b^ing able to 
relain funds in his hands sufficient to dis- 
charge this contract; can any one believe ife 
would be an answer to an action upon it for 
the executor to say, "1 did indeed prevent 
you Irom pursuing your legal remedy for 
the recovery of your debt, and have thua 
^^ enabled other creditors to acquire a claim 
upon the effects of my testator superior ta 
^^ yours ; but in the satisfaction of those 
claims I have been compelled, by the 
^^ rules of Jaw, to exhaust the whole estate 
ot my testator, and cannot, consequently 
, perform my contract with you?** There 
Ji no one. I think, who will not admit that 
the executor in this contract rendered him- 
self personally responsible for thi. ».avm. 
(a) Paley't Priaoipal & Ageul, 303. 

r sa«^£2% 


n to be positively 
er this Court can 
le expenses upon 
pon the estate of 

Co, of the same 
servants' wages ? 
i not the shadow 
contracted with 
ion of his with- 
him the amount 
ith the expenses 
ition of this con-, 
le scope of their 
, they are, upon 
of law, (a) per- 
Jppose that an 

writing, a cre- 
d commenced a 
lebts and costs,, 
(continuance of 
nd that, after- 
iged to expend 
?state to satisfy 

b^ing able to 
ufficient to dis< 
(T one believe it 
ion upon it for 
indeed prevent 
:al remedy for 
and have thus^ 
icquire a claim 
tor superior to^ 
tion of those 
Jelled, by the 
e whole estate 
^ou?'* There 
lot admit that 
^ndered him- 

ifip nctvman* 

) nkvvfoundland. , 

t)f this debt ; and that it is consistent with 
natural equity, that if a loss must arise out 
of this contract to one of the parties, it ought 
to be borne by the executor, and not by the 
creditor, who had been induced, upon the 
Undertaking of the executor, to pay the debt, 
to abandon those legal proceedings which 
must have led to the satisfaction of it. But 
it is impossible to distinguish, in principle, 
between such a case, and the one now un- 
der investigation ; and since the petitioner 
did, upon the faith of the assurance he had 
received from Messrs. Brooking, Cross ^ 
Jasker, that ihey would pay him the amount 
of the bills he held, with the expenses thereon, 
relinquish a suit which he had instituted 
against a concern ihen supposed to be sol- 
vent, J am olearly and decidedly of opinion, 
that those gentlemen are strictly bound by 
the contract they have entered into with him. 
It was their duly, and not his, to ascertain 
the extent of their authority and power as 
trustees ; and if they have exceeded it, any 
inconvenience, oriryury, resulting therefrom, 
ought certainly to fall upon them rather 
than upon him. This brings me, therefore, 
to the second head of inquiry, viz., whether 
this Court can sanction the payment of the 
# expenses upon those bills, as a charge upon 
the estate of Stabb, Preston, Prowse 6f Co. 
of the same degree as a payment for servants' 
wages ? And hore I shall take occasion to 
repeat the declaratioi I formerly made, of 
my firm intention not to disturb any of the 
judgments of my respected predecessor in 
office,— ♦• Interest reipublicce res judi- 
-CATAs NON rescindi." (i) if, therefore, 
1 cou!d not relieve the trustees in this in- 
stance without departing from the line of 

(6) See this ptincipl. MlopUd m a masim of law bf 
liord CoAe, in bia Stcoqd loititntt, p. 360. 




Ex-par te, Houan 
in III* matter of 
^$TABB, Prks- 


&Co'i. iaiotr«a« 




conduct pursued by Mr. Forbes, I should 

^tP-'e;H^K relir ^n'r"'''7' *''^"»'^ with feelin^so 
•« «•• mttier of ^^^giet, to bear the consequences of t hit 
SrjBB Phbs^ responsibility which, by their own act lev 

which, m the least, militates against their 
receiving that protection from this Court to 
vWuch under all the circumstances of the 
case. I conceive they are fully entitled t 
18 true, that he has decided tlfatJhe holders 
of any protested bills, drawn for servant? 
wages, shall represent the servants as far as 
respects i\yea,,^onnt of the bills tLmsdveT- 
im as regards the expenses upon sTchbilh 

- d tY^'^'irn ^^•''^ " i'^--t da'sf ^f'c i 

con^nea \'r.^^^^'«>*'». however, is evidently 
confined to thosfe cases where the rlWm L 
preferre,. by the boM.r of the bi Is a/^he 

sent case. Here the petitioner !md commen- 
ced h.s action against a concern which ^s 

have obtaned a. |ndginent which would haVe 
«nt led him to a full satisfaction of hs debt 

10 the estate of a branch of the same firm 
»ubm.t a proposition to him, which theT 

«tt ^-n^^e'dt'^K^ '"''»>"Weons to tife 
estate entrusted to them; and viewinffthi* 

light, I have no hesitation In rivine the 
T^?'^ Ooortto apr«ceel^^g.^hW^ 

f7«"»' P^o"" 4- «». I do not. howeyer 
therefore. A. ch«8e w'iVwl^'VrfTXI: 




^orbes, I should 
with feelinsjs of 
luences of that 
r own act, ihey 
ves. But, hap- 
•n of Mr. Forbes 
es against therr 
Ti this Court to 
fnstances of the 
ly entitled. Jt 
hat the holders 
n for servants' 
rvants as far as 
ills themselves ; 
pon such bills, 
nt class of cre- 
'er, is evidently 
ire the claim is 
? bills after the 
s taken place; 
ply to the pre- 
r Ijad coramen- 
em which was 
ould probably 
ch would haVe 
on of his debt, 
s, th€ trustees 
the same firm 
, which ebey, 
ageous to the 
d viewing the 
1 in the same 
in giving the 
reeding which 
«vhen entered 
ors of Stabb, 
fiot, however, 
^te from the 
lich tYtt peti- 
nd fcyeciing, 


he has inserted in his account under the 
head oUnterest and da^na^es, as not forming 
a part of the expenses upon the bills, 1 here- 
by authorize and direct Messrs. Brookings 
Cross 4' Tasker to pay him the several suras 
he has advanced for protests and postage, 
amounting in the whole to £6 5*. Qd. ; and 
to take credit for this payment in their ac- 
counts, as trustees to the estate of Stabb, 
Preston, Frowse ^ Co, 

fliCHAEL M'Lean Little against John 
Broom, Esq., 

J HE following is an outline of the cir- 
oumstance^ connected with this action : — 
Upon the 9tli of May» 1822. Messrs. 
Broom Sf" Blaikict two of the magistrates of 
this district* issued an Order of Session, 
setting forth a presentment bif the Grand Juru 
of certain manure, rubbish, and other filth 
and putrid substances, lyin^, or deposited, 
in the streets, coves, lanes, and other 
places, in the town of St. John and its vici- 
nity^ AS. great public nuisances;, and calling 
upon the proprietors thereof to remove the 
same, witbia seven days from the date of such 
order, under penalty of forfeiture. The 
order also conveyed a noticje to the proprie- 
tors, that upon their default in removing the 
subject-matter of these nuisances^ the ma- 
gistrates would employ men and. carts to 
remove the same, and would take legal 
measures to recover any expense that might 
be incurred by such removal. The order 
-was published in the Royal Gazette on the 
18th of June following ; and, after an inter* 
val of more than seven days, from the publi- 
•^(^iivu. us It,, iwc wcicHum'- Tucieu ine con- 
Stables, to carry it into exbcution. Accp*d- 









ingly the constables, aboutthe23(J July last 

seize, a quantity of manure lying near the 

TlnclTl *" '^ <^overnment ho "se? a a 

distance of less than a mile from the centre 

itlVZV '"^ !'"\P^«--^'inghivinra« 
It should seem, mspired a general a?irm 
among the owners of the manure, the p lai^ 
tiff, at an early hour the following mofniW 

h^ eTolf' """^^^'* Z'- persons=to remov'^e 
Ills heap of compost, which, as it appears bv 

mer"'rh!l'«t n "' ^ purticuIarl/oKi'v^ 

Dot^'^nTr p"^ '*:f ^^^^»^«»' came^ribe 
K \?? ^ "' ^.^^«"««^y explained to them 
that the depositing of manure in such a 
place was unlawful, and that they should 
not be permitted to take it away: then ad- 

remTv/ it Th ^T ."^^ ^° «"°^ ^^em to 
l^^ f i* ^^^ defendant immediatelv 
placed a /^ on the heap ; and in renl v to « 
request from the father of the pVa^^ff 

dition'n?'^- * r™^"? '^' ™«°»r« "Pon con: 
dition of his becoming responsible for the 

Iff /?°«fq"ence8 of depSsiting it tLre 

s ffpr th"'^^''' '^*? ^'"^ t^at he would not 
suffer the removal of the mannre bv fhl 

servants of the plaintiff; andThatTf any in! 

n"\T"th:^*"r''lP^^^°*'« "^y thisproceed. 
flTitThl l'^'"^«"»' '""St be answerable 
iL / ' manure was, inconsequence 
removed, m common with that ofl^^veJ^I 
other persons, by the constables, to a S- 
bouring lot of uncultivated land L1onof„g 
to the Crown; and the whole was by a 
printed notice purporting to be an Order of 

ioTe'sold tr'.f ^' ''''* '^22' ^^^« 
cLJtl i' V^^ P^'P""® *>f defraying the 
charges for its .removal. At th. ii± Ic 

eaie there was only one very low-offermad^e 


ie2,1d July last, 
i lying near the 
ent house, at a 
rom the centre 
iling havin;>;, aa 

general alarm 
'ure, the plain- 
winar morning, 
sons to remove 
8 it appears by 
ilarly offenaivfo 
f the plaintiff 
f? the compost, 
nt came to the 
lained to them 
ire in such a 
It they should 
vay: then ad- 
ant. His Ex- 
allow them to 


in reply to a 
the plaintiff, 
ire upon con- 
isible for the 
ting it there, 
be would not 
more by the 
lat if any in- 
this proceed- 
5 ansnrerable 
It of several 
, to a neigh- 
i belonging 

was, by ^ 
an Order of 

jfraying the 

offer made 


for the manure ; and the sale was. in conae- 
qiience, stopped. At an early period after- 
wards, the Governor authorized the defend- 
ant lo apprize all the owners of the manure 
which had been seized, that it would be re- 
stored to them, free from any costs, if they 
chose to take it away from the government- 
fit Id on these term's. Of this offer all the 
owners of the manure, except the plaintiff 
immediately availed themselves. But the 
plaintiff, apparently impressed from the be- 
ginning with an idea that the proceedings of 
the defendant was illegal, rejected the pro- 
posal, and determined to seek redress for 
the injury which he conceived he had sus- 
tained, by an action against the defendant. 
At the time when these occurrences took 
place, there was no Chief Justice residing in 
the island ; but there then was, and for some 
time after continued to be, an officer autho- 
rized to issue writs, returnable in the Su- 
preme Court. The plaintiff, however, did 
not avail himself of this opportunity of com- 
inencmg a suit in it against the defendant 
but waited until the arrival of Chief Justice 
Jucker m April last, when he brought an 
action of trespass against the defendant, de 
boms asportatis. The trial was, however 
deferred, at the request of the defendant, un- 
til this day, when it came on before a Sne- 
cial Jury The pleas of the defendant were, 
o?.* \ne general issue, " NotGuilty ;"and 
2dly, The statute of the 24th Geo II e 
44, which enacts, in the 8th section ther'eof 

\„J""^?Vro^^" ^f *'''«"gi»t against an; 
Justice of the Peace for anything done in 
the execution of his office, unless commen- 
ced within six calendar months after the 
act committed. 

To the last of these pleas it was urged by 
^i»im*for the plaintiff, 1st., (hat the absence 










fen'rf.n. - V^' ""•'•/"•'»">«'%. that lh« de- 
nt^, V.u""''' "O'ewille himself lo the be- 
ne« of that .tatute, beca..»e ho only acted 

of h , office, and not in virtue of it. 

,1. *,"..••'"«"'•"» offset" was confirmed bv 
the te.t.mony of a great number of XS^ 

Md Th.%^-''? ,*""""*•• o" both ,ide.; 
thi'f^ «<> the Jury, the principal points of 

iS •' wA"/??*' T'»T«'«' » 'he foUow- 
mg **»«»oy*w«iW«-«"a»coDicdT£rh.i!m 
from bia minute, of tht triaj. •'""'»*™»»™ 

in ttw Jf'it!'"' """""' "-em particularly 

J^e«.) "'*■• ^^ ' """^ ^r SimmX^: 
Jtteam/uaioHo/tiegaod, no defence in 

paS^df:^itU'.5;;irn :'■:,:•,, !:^-'r^* 

corameiit thereon. ' .' Wates^ tac!. 

«/rxr t'he'zs;;i'a'Lt«.ra*ir 

ev^nta protected by the iMli, Geo,^i: c 44" 
Under the general i,«,e, the Jury wHJ 

inat /u acted nght m remmnw «A« »ia«w« 
* L ZT^ ""^^ cannot ind C Xm 
ri ^!^lu '""*• •*." «<=«<»<« of the irregnla: 

Sons ri^H P"rf T '" •he Court ol^sH 
.w':./iS''.";?r.'».'?'J' ""oae proceeding, were 

—a~^,. =wi.«iey nwMejiteaiitheb*B«K 


ficient ground 
Qt the plainti/r 
a by the limit- 
^ Geo. n, c. 
» that the de> 
Bifto the be- 
eonly acted, 
under cul , -r 

confirmed by 
er of witness- 
both sides; 
vered a long 
Ml points of 
I the follow-^ 
>icd Terbatim 

le whole case). 

V. Bopldnt^ 
If in his ad' 

defence ia 
}annot take 
ep^ through 

eral issue; 
not; at all 
i Jury will 
e satisfied 
>^ manure* 
I for him 
X irregiila- 
irt of Ses^ 
iog^ were 
the ^««; 


fit of tho 24th Opo. If. c. 44 to him, if they 
More satwaed that he acted bonA Jide as a 

The six months having begun to run, are 
vM, in point of law, stopped by any subse- 
qnent impediment. 

The Act of the Session, although inform- 
al, seems by no means to have been tyran- 
nical or oppressive; and this is, nfcrhaps, 
one of those very casts in which the legis- 
lature particularly intended to protect ma- 

No inference against the plaintiff is to be 
drawn from his not accepting the defend- 
ant's offer to take back his manure ; because 
if he believed the proceeding arbitrary and 
unjust, he was even entitled to praise for re- 
sisting it. But the acquiescence of other 
parlies furnishes a proof that they were 
content to get back their property on the 
terms offered ; and certainly if the Court of 
Sessions had proceeded against aJl these 
parties according to law, they might have 
ho.mfned for their conduct. The proceed- 
ing of the Court was, therefore, less penal 
towards them than it might have been if the 
Court had followed the true legal path. 

The Jury, after a deliberation of more 
than an hour, returned a verdict for the 
plaintiff, — damages £12. 

'I It 

lU PON the motion oi John Broom, Esq 
the following rule was granted to him by 
Ihe Court:— * 

^Jn the cause between iMTic^aeZ McLean 
i»«/c and JoknBrooni, Esq. : It is oi-dered, 
that the plamtiff, upon notice of this rule to 
be oiVfBn tn him i^n «k^ j-^ ^ _d. • •• 

«p«« tintfMsgr tlR Sdtli io9tiiDt, sfa^troaiise 



September 9th, 



^^*«»Aw 1»^ 

I 4 


^vliy the verdict shnnU * . 

MiCHAfeL M'Lpav T, 

&britrj:,\i^Ve"^^^^ -^-^ 

"^^ trial in tins ca/se ^.^^^^"dantfora 
^tmms, on behalf nf ft i -^^^ ^''^^^ ^Y 
defendant wafnof em i^^'".!''^' '^^^ ^''« 
oHhe 24th Geo Jl " 'i!»^ *^ the protection 

If t. Because ' the* OrdtTc 'sT'* ?''^""^^« • 
so thoroughly illell " JHf *>^ ^e^S'ons was 

sanction to an act dnn. ^?^ affording any 
^^ .J o an act done under the antboriiy 

^Ml^t^fo^n'of'thifr! '^P^'""* ^'om the 
fendant vvas actint t."*^?^^' ^^^' the de! 
in^. -hichla'd'g^ ^rt'7j ^^e proceed- 
a^-t.on, under colourZ h?- i / P''^^*"^ 


of his arguments; reTwi^'-'nrlf •' '? «"PPO''t 

(tnouo-h If Qrl«.:.* 'i .. '"^ 

tlie great case o( Untick v V^^ •' •" "»'"" 
^o"/-/, however ahmilh;!' ^^T^^^-^^w*. The 
Order of Sessions ^1 7/ ^t™'^^^^ ^^^^ the 
from the charge o7 ,1 i^^«^' ^'"dicated it 
P^9-Fe; byfho;'ing"tK:;r-"do;,. 

principles, ft contain^H ,? ^u"^®^ ^®"^r«' 
<=ivil liberty, accor^ng o sFr^' V'f ''^ *« 

-ce lent definition of !t^(f^Tnd^;trrf 
(fl) " Civil liboKy is tb.t «f . . duverc- 

»» other tb,„ ««Jro/ /5^,"^* •jr*^- «/ '"cWy. .nd i. 
];^« (and no farther) „ iS'^ee.I 'r*'*"^'"'*' ^^^ »""»" 


^tbe set aside, anil 
5 defendant. 

LE against John 

^uJe Nisi, which 
e defendant for a 
It was urffed by 
Plaintiff, that the 
to the protection 
on two pounds : 
of Sessions was 
"*y, and oppress- 
'f affording any 
er the authority 

>arent from the 
-♦ that the de« 
tit the proceed- 
[o the present 
•ceof a Magis- 
■s, and dicta of 
ges, in support 
ncipaHy, upon 
rrino-ton. The 
Q'tted that the 
vindicated it 
itrary and op. 
upon general 
fngr hostile to 
• Blackstone's 
»d by advert- 

rained by human 

lod txpedient for 

i"; \'}* P- 126. 
wnaitiQii wbiei^ 


m% to the statute law of England, which, m 
more instances than one, has clothed the 
1 surveyors of high- ways and streets with 
tnuch more extensive powers than were ne- 
cessary to legalize the Order of Sessions 
which had been issued by the magistrates 
of Newfoundland. It also observed, with 
reference to the case oiEtitickv. Carrington, 
that the inference deducible from that case, 
was in direct opposition to the first position 
advanced by Mr. Simms; for there, though 
-Lord Camden expressed himself in the 
strongest language upon the illegality of the 
ivarrant (and there could be no doubt but 
that all the epithets which had been applied 
to the Order of Sessions in Newfoundland 
were much more suitable to that warrant), 
yet his Lordship, and the Court of Common 
Pleas, did not decide that the defendants 
were deprived of the protection of the 24th 
Geo. 11., c. 44, on account of the illegality 
of the warrant; but because Lord Ualifase 
was not a Justice of the Peace; and 2dly, 
because the defendants had not complied 
strictly with the terms of the warrant. Now, 
had his Lordship been of opinion, that a 
warrant, of the character of the one issued 
by Lord Halifax, was so totally void ihat it 
could not afford any protection to an act 
done under it, even if it had been issued by 
a Justice of the Peace, it would have been 
altogether useless and unnecessary for him 
to labour, as he did, to prove, by so elabo^ 
rate and learned an argument, that a Secre- 
tary of State is not, in reality, invested with 
the powers of a Justice of the Peace. It is 
evident, therefore, that his Lordship thongjbt 

in^substenise, U nearly the sane as Sir Wm. Blachlone's: 

• 'trt, .iuBiiy := tho noi being restraiiked by any imw. 

Jr T,'"Vf'*"*'""? '" ^.greater degree to the public fod. 













that that warrant would have entitled the 
defendants to the benefit of the 24th Geo. 
IJ., c. 44, if it had been issued by a majris- 
trate, and strictly complied with by the de- 
fendants : and since the Order of Sessions 
is not, certainly, open to greater objections, 
upon general principles, than Lord Halifax's 
warrant, the case of Entick v. Carrington Sf 
Others, which has been so much relied on 
by the plaintiff in this action, is a strong 
authority to show that the Order of Ses- 
sions was capable of affording protection to 
an officer acting bond fide under it. But 
there was one case, that of Biggs v. Mvdtfn, 
2 Hen. Black. 214, which satisfied the 
Courf that the defendant in this action was 
entitled to the benefit of the 24th Gto. Jl., 
c. 44. There the defendant, who was lord' 
of a manor, entered, in company with his 
gamekeeper, the house of the plaintiff, and 
took therefrom a gun ; for the recovery of 
which the plaintiff brought an action of'tro- 
ver against him. But the Court of Common 
Pleas, though they admitted that even a 
magistrate had no authority whatever to 
enter the plaintiff's house, or to take away 
his gun, still held, that a magistrate who 
should do so in virtue of his office, was en- 
titled to notice of the action under the 24th 
Geo. 11.-, c. 44; and because the defendant 
was, in point of fact, a magistrate, the 
judges thought themselves at liberty, even 
under these circumstances, to presume that 
he was acting as a magistrate, and accord- 
ingly nonsuited the plaintiff.— By comparing 
that case with the present, the Court found 
that it furnished an answer to every argu- 
ment which had been urged on the part of 
"the plaintiff in this suit; and accordingly the 
.Court i&M that tue verdict could not be sus- 
tained upon the mere point of law. But an 


lave entitled the 
of the 24th Geo. 
ued by a maois- 
with by the de- 
rder of Sessions 
eater objections, 
1 Lord Halifax's 
V. Carrington 6f 
much relied on 
on, is a strong 
e Order of Ses- 
ng protection to 
under it. But 
^iggs V, Evelyn, 
I satisfied the 
this action was 
e24thGto. J J., 
t, who was lord 
npany with his 
lie plaintiff, and 
le recovery of 
n action of tro- 
)urt of Common 
ed that even a 
y whatever to 
3r to take away 
mag^istrate who 
office, was en- 
under the 24th 
3 the defendant 
aagistrate, the 
at liberty, even 
to presume that 
3, and accord* 
-By comparing 
le Court found 
to every argu- 
on the part of 
iccordingly the 
uid not be sus- 
f law. But au 


application for a new trial is always regard- 
ed by the Courts at Westminster, with re- 
ference to equitable considerations; and it 
has been laid down in many cases that a 
new trial will not be granted upon a strict 
point of law, contrary to the equity of the 
cause (2 Salk. 644 & 646.) Looking, then, 
to the real merits of this case, the Court 
perceives that the plaintiff has been depri- 
ved of his property by a proceeding which 
was certainly illegal ; prevented for more 
than four months from bringing his cause to 
trial, by an application for the postpone- 
ment of it by the defendant, upon grounds 
which now appear to have been frivolous ; 
and that the damages which have been 
given to the plaintiff by the jury, do not 
exceed the actual value of the property 
which has been unlawfully taken from him. 
Under these circumstances, therefore, the 
Court considers the verdict a very equitable 
one ; and, consequently, feels it necessary 
to discharge this rule. 


William Innott, administrator to the Es- 
tate of Jeremiah Hartary, against 
James Penderoast & James Fox, execu- 
tors to the Will of John M'Grath. 

HIS action was brought to recover the 
possession of a fishing-room, held by the 
defendants under a parol demise to their 
testator by the late Jeremiah Hartary. 
The holding, and notice to quit, being 
admitted by the defendants. Broom, jun., 
on their behalf, endeavoured to setup a ver- 
bal lease for twenty-one years, of which, as 
he stated, four veara wprp v#»f nn^v^i^^A 
iJut the Court held such a lease subject to 
the provisions of the statute of frauds ; and, 




September 9th] 

Verbal]e»§9» for 
• longer term ihan 
three yea/s, liar* 
tlie force and effect 
of leaie$ at will oa* 




therefore, as there was no other defence to 
the action, it was, by agreement, ordered, 
that a writ should issue to put the plaintiff 
in possession on the 20th of October next. 

September 15th, 

ir partners buy 
land, Tor the pur<> 
pose of a parloer- 
■hip ooncern, it 
forms part of the 
partnership proper-^ 
ty: and it />artoer% 
»hip property is in« 
Tested lu the par« 
chasb of a leal e8> 
tate, such estate 
will hi partnerthip 
property, though 
the oooveyance of 
it may have been 
made to only em 
of the partners. 

Ex parte, Epward Banks, ia the matter 

of George Augustus Elliott's 


Jr ER Curiam. The petition upon which 
the question in this case arises, was originally 
addressed, in the absence of the late Chief 
Justice, to the Judge of the Surrogate Court 
m St. John's; and has been referred by 
him, with consent of parties, to my deter* 
tnmation. From the evidence which has 
been laid before me, it appears that, in the 
autumn of 1819, the insolvent communica- 
ted to one Robert, Ollethead some commer- 
cial plans he had formed, and proposed that 
a partnership should be entered into be-, 
tween them ; but this proposition was not 
assented to by Ollerhead; and the insolvent 
soon after left this country for England, 
where he obtained, upon his own credit,* 
goods to a considerable amount, which he 
forwarded to Newfoundland in the early 
part of the year 1820, with a letter to Oller^ 
head, requesting him to take charge of them s 
and adding, that if he would do so as oar/- 
wcr, he, the insolvent, would be better pleased. 
Under the authority of this letter, Ollerhead 
took possession of the goods ; hired a store 
to deposit them in ; and, from thatperiod, he 
and the insolvent, without entering into any 
agreement respecting the terms of their 
partnership, continued to act, and carry on 
business, as partners in trade, under the firm 
of fa^. A. Mliott 4r Co., until January, 1821 ; 
when it was agreed, that the partnersbip 



;her defence to 
nent, ordered, 
ut the plaintiff 
October next. 

in the matter 

m upon which 
was originally 
the late Chief 
irrogate Court 
I referred by 
, to my deter* 
ce which has 
irs that, in the 
t communica- 
ome commer* 
proposed that 
ered into be^^ 
ition was not 
the insolvent 
for England, 
own credit, 
int, which he 
in the early 
Jtter to Oiler- 
arge of them 5 
io so as part- 
better pleased. 
ter, Ollerhead 
hired a store 
batperiod, he 
ring into any 
pms of their 
and carry on 
nderthe firm 
nuary, 1821 ; 
! partnership 


ihonld be dissolved ; that Ollerhead should 
be paid £211 Os. Ad., as the balance due to 
him upon the statement of ihe account be- 
tween the parties, together with £100 as a 
remuneration for his services during the 
existence of the partnership ; that a notice 
of the dissolution of the partnership should 
be inserted in the newspapers; and that 
the msolvent should procure some friend to 
guarantee Ollerhead from any liability for 
the debts of the firm. It seems, therefore, 
quite clear, that a partnership, as to tJiird 
persons, did, in fact, subsist between these 
parties for aboat six months ; but how far 
Ollerhead was entitled to a participation of 
profits ; and whether he ever had any vest- 
ed interest in the partnership property 
(17Vesey, 404) are questions which it is 
by no means easy to decide upon the evi- 
dence which has been adduced in this case. 
It IS, 1 think, even open to some doubt, 
whether a partnership, inter se, did ever ex- 
ist ; and, consequently, whether Ollerhead 
could If he had been disposed to insist 
upon his full rights, have supported a claim 
agamst Elliott for anything beyond a com- 
pensation in the nature of wages, upon the 
principle of & quantum meruit, tor his labour 
and trouble. (Peacock v. Peacoc/c, 2 Camp. 
45.) But without dwelling farther, at pre- 
sent, upon these points, i will now state, 
from the evidence, some other facts more 
closely connected with the question under 
consideration Before the insolvent went 
10 t!.ngland, he had a conversation with Mr 
JJoyles, the agent of Mr, Newman, respect- 
ing some property belonging to the latter 
gentleman, which the insolvent was desirous 
K«V.VI""° "»"'"« "^"/^'Hg-leaKe ; and whilst 
he was m England he had some communi- 
cation with Mr. Newmat 



Ex parte. Banks. 
in tliK matter of 
Elliott's ia- 





h '■'■ 

<;. .: 


Ex-parle, Banks, 
in tile matier of 
Elliott's in- 

and lie also purchased some materials for 
building, which Mere sent out by him to 
St. John's. He did not, however, make 
, any agreement with Mr. Newman; but upon 
his return to Newfoundland, and subse- 
quently to the commencement of his con- 
nection with Ollerhead, he renewed bis ne 
gotiations with Mr. Hoyles, and shortly after 
obtained from him a lease of the premises in 
his own name, without any consultation with 
Ollerhead as to the terms and conditions of 
the bargain. The building materials sent 
out from England, were then employed in 
constructing a house and stores upon the 
demised ground ; and a large proportion of 
the goods purchased by the insolvent, on 
his own credit, anterior to the formation of 
his partnership with Ollerhead, were trans- 
ferred to Mr. Rough, the builder, in part- 
payment of his account. Some of the part- 
nership property was also,, it is said, ex- 
pended upon the buildings; and after the 
dissolution of the partnership, the insolvent 
paid many hundred pounds towards their 
completion. With the interest thus acqui- 
red in the premises, the insolvent appears 
to have considered himself solely and ex- 
clusively entitled to the term ; and accord- 
ingly mortgaged it, in July, 1821, to the 
petitioner, as a security for the pay- 
ment of a large debt, at a time when the 
petitioner and a Mr. Graham were almost 
the only creditors of the insolvent,, and un- 
der circumstances which induced a belief, 
on the part of the insolvent, that his debt 
to Graham had been liquidated. There is, 
therefore, no room to question the h&najidet 
of the transaction ; nor do I find that an at- 
tempt has been made, in any stage of the 
proceedings, to impeach it on the ground of 
di fraudulent preference. But Elliott havings 


materials for 
lilt by him to 
wever, make 
lan; bat upon 
and subse- 
it of his con- 
lewed his ne 
1 shortly after 
e premises in 
conditions of 
aterials sent 
employed in 
es upon the 
sroportion of 
insolvent, on 
formation of 
were trans- 
der, in part- 
5 of the part- 
is said, ex- 
ind after the 
he insolvent 
owards their 
t thus acqui- 
ent appears 
lely and ex- 
and accord- 
1821, to the. 
r the pay- 
ne when the 
were almost 
at,, and un- 
ed a belief, 
bat his debt 
y There is, 
le bonajidei 
that an at- 
stage of the 
e ground of 
Holt having 


some time afterwards become insolvent, the 
trustees and pjeneral creditors of his estate 
dispute che validity of the mortgage to the 
petitioner; because they say the lease itself 
was the partnership property of EtlioU ^ 
Ollerhead ; and that no assignment of his 
interest in it was ever made by Ollerhead to 
Elliott, so as to enable the latter to dispose 
of it without the concurrence of the former. 
J shall, therefore, examine this subject under 
the three following heads : — 

1st, I shall state the arguments both for 
and against the position, ihat the lease was 
partnership property. 

2dly, 1 shall explain the reasons upon 
which 1 conceive there was a sufficient as- 
signment to Elliott of Ollerhead's interest in 
the lease, if we were even to allow that he 
once had an equitable interest in it. 

3dly, I shall show that the mortgage is, at 

all events, good, as against the separate 

creditors of Elliott, whatever objection it 

may be open to as respects the rights of the 

joint creditors of Elliott ^^ Ollerhead. 

In the first place, then, it is, ] apprehend, 
perfectly settled, that where partners buy 
land for the purpose of a partnership concern. 
It IS part of i\\e partnership property (Thorn- 
ton V. Dixon, 3 Bro. 199); and that if the 
partnership property is invested in the pur- 
chase of real estates, the property is not se- 
parate, because the conveyance is made only 
to one partner'-(Smith v. Smith, 5 Ves. 189). 
if, therefore, it had appeared from the evi- 
dence, that this lease was taken for the pur- 
pose of a partnership concern ; or that the 
buildings had been solely erected with part- 
nership property, I should have no hesita- 
tion m declaring the lease to have been 
partnership property, notwithstanding it was 
inade to Elliott alone. But under the real 



Ex'parte Banks. 
ill llie roaiitr of 
Klliott's in« 



i iJ 


Ex^parte Banks, 
in the matter of 
JiLLIOTT'i in. 

facts of this case, can any one feel satisfied 
that tliis lease was originally taken for a 
partnership concern with OUerhead; or that 
the buihlings were erected principally with 
partnership property? Before the rom- 
mencement of his connection with OUerhead, 
Elliott enters into a treaty with Mr. Hoyle* 
for a lease of this property; and concludes 
his bargain during the existence of the part- 
nership, without once consulting his partner 
upon the propriety of the proceeding, or 
explaining to him the views with which he 
had entered into it. Surety, if Elliott had 
intended to purchase this property on ac- 
count of OUerhead and himself, he would 
naturally have advised with his partner up- 
on the subject of the purchase; and it is 
still more probable that if OUerhead had 
considered himself concerned in the pur- 
chase, he would not have remained perfectly 
passive and inactive whilst the negotiation 
for it was in progress. J t was a matter of 
too great magnitude to be regarded by him 
with indifference, if he had supposed himself 
to be in any way a party to it. From the 
conduct, therefore, of both Elliott and O/- 
lerhead an .'nference may be drawn, that the 
lease was not taken by Elliott for the pur- 
pose of a partnership concern. Let us see, 
then, whether the buildings became partner- 
ship property in consequence of their being- 
constructed out of the partnership fund. 
Now, it appears, that a large quantity of 
building materials were sent out by Elliott 
from England, together with a number of 
other goods procured by him upon his indi- 
vidual credit before any partnership was 
formed between him and OUerhead ; and it 
is certain that OUerhead was^not liable for 
the debts thus contracted by Elliott (Saviile 
V, Robertson, 4 T, R. 724.) But it ia pro- 




feel satiBfied 
' taken for a 
head; or that 
ncipally with 
re the corn- 
ilh Oiler head f 
h Mr. Hoyles 
id concludes 
e of the part- 
ig his partner 
oceeding, or 
nth which he 
Elliott had 
ierty on ac- 
f, he would 
3 partner up- 
e; and it is 
J Her head had 
in the pur- 
ined perfectly 
te negotiation 
I a matter of 
rded by him 
posed himself 
From the 
Holt and Ol- 
awn, that the 

for the pur- 
Let us see^ 
::ame partnef- 
3f their being 
ership fund. 
i quantity of 
It by Elliott 

a number of 
pon his indi- 
tnership was 
head; and it V 
not liable for 
lllioti (S)aville | 
But it is pro- 


ved in evidence, that those very materials 
^vere employed m erecting these buildings, 
and that the principal portion of those goods 
was transferred by Elliott to the builder, ia 
part-satisfaction of bia demand upon him ; 
and it is also proved that a very large sum 
of money was paid by Elliott, on account 
of those buildings, after the dissolution of 
the partnership. 1 am, therefore, strongly 
inclined to think that the buildings must be 
deemed, ad initio, the separate estate of 
Elliott ; and that the effect of the appropri- 
ation of a small portion of the partnership 
fund to this purpose, would merely be to 
Fender Elliott a debtor to the firm for the 
money so advanced, and not to convert the 
buildings into partnership property. If, in- 
deed, this question had arisen between the 
joint creditors of the firm, and the separate 
creditors of Elliott, it would have borne 
some resemblance to the case of Hayes Sf 
G^/^»m'* insolvency; but 1 cannot discover 
that that case has any bearing whatever upon 
the present controversy ; nor do 1 conceive 
myself called upon to AeciAe pontively, that 
these buildings could not, at any time, be 
considered partnership property ; because I 
am convinced that if Ollerhead ever had an 
interest in them, it ceased upon the dissolu^ 
tion of the partnership. Against this posi- 
tion it may be urged, that a mere dissolution 
of partnership, without any assignment to 
the remaining partner, will not convert joint 
kito separate property (ex parte Williams, 
1 1 Ves. 7) ; and that we have been expressly 
told by Ollerhead, that there was no assign- 
ment upon the dissolution of his partnership 
with Elliott. But if we look for a moment 
at the terms upon which the partnership 
was dissolved, we shall perceive that Oiler" 
head must be understood to mean a written 



Ex parte, Banks 
in tlie matter of 
Elliott's in- 



I 'S 

m ■ 

1823. assignment; for it cannot be imagined that 
^ ^>" V ■^. ' Elliott would consent to pay Ollerhead tlie 
^n'^hlf'm.tS 'valance of, his account— to remunerate him 
Elliott" ia. *or his services—and to guarantee him 
■olTency against any liability for the debts of the 
firm, — if it had not been the intention of 
both parties that the partnership property 
should thenceforward vest solely in EUioti, 
In fact, these acts did, in substance, amount 
to an assignment, though a formal assign- 
ment might not have been made; and since 
it is laid down, generally, that it is not ne- 
cessary that the transfer should be by an 
instrument in yiv\im% (^Montague on Partner' 
ship, p. 101), there is an end to any objection 
founded upon the irregularity of the assign- 
ment ; and with reference to what has been 
alleged against the sufficiency of the mea- 
sures taken for dSnolving the partnership. 
1 shall content myself with observing, that 
the agreement to dissolve, and the notice of 
dissolution published in consequence there- 
of, did effectually destroy any partnership, 
^ tnfcr *e, if it ever existed ; although it would 
Bot have protected Ollerhead from any fu- 
ture dealings between Elliott and an old 
customer of the firm, who had not notice of 
its dissolution ; but from this liability he 
liad taken care to guard himself by the 
guarantee of Mr. Preston.^V pon an atten- 
tive consideration, then, of all the circum- 
stances attending the dissolution of this 
partnership, 1 think it highly probable that, 
if the lease in question had been ostensibly 
and indubitably taken for a partnership 
concern, the buildings erected exclusively 
Mrith partnership property, and the convey- 
ance made to Ollerhead as well as to 
Elliott, a Court of Equity would, after 
, „ „s.,.,v.i«i,.vi4 \jt luc iiriu, uave com- 
pelled Ollerhead to convey his interest 



e imagined that 
ly OUerhead tlie 
remunerate him 

guarantee him 
le debts of the 
the intention of 
ership property 
olely in Ellioii. 
[)stance, amount 

formal assign- 
lade; and since 
lai^ it is not ne« 
lould be by an 
gue on Partner' 
o any objection 
y of the assign- 
» what has been 
y of the niea- 
he partnership, 
observing, that 
id the notice of 
lequence there- 
ny partnership, 
though it would 
' from any fa- 
ott and an old 
d not notice of 
his liability he 
himself by the 
Upon an atten- 
all the circum • 
Jution of this 
probable that, 
teen ostensibly 
a partnership 
ed exclusively 
d the convey- 
\ well as to 

would, after 
Qj, have com- 

his interest 




in the lease to Elliott, in conformity to 
the rule established in equity, that what- 
ever has been agreed to be done shall be 
considered as done. But in the present in- 
stance there is no occasion to resort to this 
principle; for as OUerhead ne\ei' had a legal 
title to the lease, but only (if any) an ctjuit' 
able one, his interest in it was always liable 
to be divested by any circumstance which 
would defeat that equity, agreeably to the 
maxim, "Nihil tam conveniens est 


There was, therefore, not the slightest ne- 
cessity for a written conveyance, or assign- 
ment, of Ollerhead's interests in these build- 
ings to Elliott ; since it would naturally pass 
from the former to the latter whenever those 
equitable considerations upon which it was 
* founded ceased to operate. 

In labouring, however, to establish, by 
legal argument, that the lease always was 
the separate properiy o{ Elliott ; or that, at 
all events, it became so upon the dissolution 
of his connection with OUerhead, I have 
almost been fencing with shadows; for if 
the lease was not the separate property of 
Elliott, what interest have the trustees and 
creditors of his separate estate in it ? To 
this hour OUerhead has not been declared 
insolvent; nor is it even contended that the 
firm was insolvent at the period when he 
retired from it. The terms of the dissolution 
were, that Elliott should have the partner- 
ship property, and that he should be re- 
sponsible for the partnership debts; and 
thus the joint property was converted into 
the separate property, and the joint debts 
into the separate debts, of Elliott. Jn point 
oi fact, iheFefore, there are not two classes 
of creditors, joint and separate, between 



Ex'parte Banks* 
in tha maUtr of 
Elliott's ia. 



! t 


Ex'^pttrte Banks. 
in ih« naitar of 
Elliott's io- 


vrhora the question of joint or separate pro- 
perty can be raised; but ail the creditors 
are creditors ejnstfem c^etieris, viz., tiie sepa- 
rate creditors of MlUivlt ; and by proving 
their debts under his insolvency, they have 
virtually acknowledged themselves to be so. 
oince, then, the petitioner, as one of the se- 
parate creditors of Elliott, did fairly obtain 
a mortgage from Elliott, as a security for 
a subsisting debt, 1 do not see how this 
transaction can be impeached by the other 
separate creditors of Elliott. They may re- 
gret that they did not act with the same pru- 
dence that he did, but they cannot prevent 
liim from reaping the benefit of it, •' vioi- 


NiUNT." Under every view, therefore, of 
• case, 1 am of opinion, that the mortgage 
18 valid both in law and equity ; and as the 
assignment of the lease has become absolute 
by the non-performance of conditions on the 
part of the mortgagor, the only interest the 
tnistees can claim in the lease is an equity 
of redemption. The Court will, according- 
ly, place the trustees in precisely the same 
situation in which the mortgagor would now 
stand If there had been no insolvency ; and 
does, therefore, order and decree that the 
trustees shall, forthwith, pay to the petition- 
er the full amount of his debt, or otherwise 
permit him to eater upon, and take posses- 
won of, the mortgaged premises. 


)r separate pro- 
I the creditors 

viz., the scpa- 
ind by proving 
ncy, they have 
(selves to be so. 
3 one of the se- 
d fairly obtain 
8 a security for 
i see how this 
I by the other 

They may re- 
h the same prii- 
annot prevent 

of It, ♦* VIGI- 

, therefore, of 
t the mortgage 
y; and as the 
come absolute 
iditions on the 
ly interest the 
'■ is an equity 
ill, according- 
»ely the same 
or would novir 
olvency ; and 
ecree that the 
) the petition- 
er otherwise 
1 take posses- 


William Henry Fry appellant, 

Benjamin Reigles respondent. 

In affirming the judgment of the Surrogate 
Court m this case, the Chic/ Justice said:— 
That where a judgment has been given in 
a Court below, founded upon the verdict of 
d Jury, this Court will not inquire into the 
merits of the case ; receive any statement of 
facts contradictory of the evidence ; nor re- 
verse the judgment, except for error inpoinl 
of law, apparent upon the face of the proceed- 

Estate of the late Rev. John Leigh. 

U PON a representation from Thomas H. 
Brooking, administrator, ad coil, bona, of the 
late Rev. John Z«>'A, deceased, that he had 
been applied to by two servants of the said 
deceased for their wages ; and that some of 
the property of the said deceased which had 
come to his possession, consisted of arti- 
cles liable to deterioration if kept for any 
length of time ; it is ordered that the said ad- 
ministrator do pay to George Garratt the sum 
of £18, and to John Maddock £2 5s., being 
the amount of wages respectively due to 
them. And, also, that the said administrator 
be authonzed to sell and dispose of,bv public 
auction, such parts of the said property as 
may come under the description of ^owa 


The Supreme 
CoHrl will nnl re« 
verse the ju<lt>in<'nt 
founded upoD the 
verdict of a Jury, 
except for error of 
law apparent vpon 
the face of the pro. 
tteUingt —[See 
6ih G»o. IV., «. 
07, e. 14.] 

September V^*k, 

Order to an ad. col- 
ligendum bona de^ 
fundi, 10 pay iha 
wages due lo llie 
servants of the dr« 
ceased, and io i)is« 
pose of, by publie 
sale, such part ot* 
the goods of the 
deceased as were 
bona peritura. 



• \ 



October ath. 

Upon the ttiif . 
•reMioo.onoath, of 
• J«'«'(?'i>©nt-oredN 
•or, thai tb« party 
•jrain.t whom the 
J"dt>ment was gj. 
v*"", had coodg 
and fffptts in the 
hands of a ihtrd 
person, that per- 
son rs diroclfd. I>y 
order of Court, to 
•ccouni for (he a|w 
|»f«l'riation of any 
I'loperly which 
•"••y h»ve come lo 
'"s pi'ssession be^ 
loiii-ing tu the 



Order Of Court. 

this Courf on Th.l , 'T""^^ *" «"*^nd '« 
answer such n„LZ^^' '^^ ^/'» »'°«t««t. to 

the%opX of tlfe s^li' vT '"^' ^^'^«-' -f 

James Blaikie, C. S, a 

October Gth. 

Order upon ibe 
next of kin lo show 
eaiise against the 
graining of adnii. 
"isirnrion, cum tcs% 
t'lmcnlo aniicKo, lo 
•he sole legatee. 

T IS ordered that notice he eiven to M 
Ann Skellon, who isstafpH 11 1 fi ^'''^• 
kin to John mitditchut **i r -^'-^ "^^^ ^^ 
island of Newfoundlf; 1^^ ^'^ ^T''^'' '» the 
her to showTaS;:? tanylhTc^^^^^^^^^ 

proved in this Ponrf ? ' 5''°"'^ "«' be 
James Blaikie, C. ^y. c. 

IVa ii 




aflirlavit of mi- 
•at George liar- 
of goods, chat- 
o Thomas Har- 
oner obtained a 
'e 29th u!t. for 
time when such 
•dered that the 
red to attend in 
0th instant, to 
f be put to him 
»nd disposal of 
nas Harvey. 

IK IE, a s, c. 



Nicholas Cbqak against Peter Brown. 1823. 

I >f this case the Court decided, that the ^'^^obtrQih. 

defendant was not liable to pay the pro- Disputed «e 

ceeds of the articles sold by defendant, as ••oiinis beiv,«..,i 

agent to the plaintiff, to James Fox of Har- n»"'*« 'efTre.i to 

hour Grace; but directed that the accounts ^^ Cle,kot.h« 

between the parties should be examined by 

the clerk of the Court, whose report thereon 

should decide whether any balance was due 

lo the plaintiff; and who should, also, tax 

the costs of the suit, which were, at all 

events, to be borne by the defendant ; the 

Court considering that this action was, in 

principle, an action for an account, and that 

the defendant was liable to the costs of it 

tor his neglect in not rendering an account 

(5 Vows Rep. 127.) 

Petition and Order thereon. 

riven to Mrs. 
Je the next of 
^'•inity. in the 
sed, requiring 
n. vvhy a cer- 

'bould not be 

> to Charles 
zabeth Ans^ 
e said will. 

To His Honour Richard Alex. 
Tucker, Esq. Chief Justice of 
JSeufowtdland, ^c. ^c. ^c. 

The Petition of Goss, Butler^ Goss, of St. 
John's, Newfoundland, merchants, 


That your Honour's petitioners, in the 
month of November, 1820, became the 
mortgagors of a plantation, the property of 
John mihams, situate at Petty Harbour 
under a mortgage-deed duly executed by 
the said ,/oA« Wilhams, insecurity for a debt 
dne by him to the petitioners in the sum c,f 
±250; which sura the said John IVilUams 
hy covenant contained in the said deed' 
agreed to pay to petitioners by annual inl 

■>;aB'i''?S?(W'' MnABfifll 



Petition it Order 

October 9th. 

October 2G//i. 


stalments of £23 each succeeding year until 
the saul rJebt should be dischar".ed^ ' *'' 

thJff i''''**'^ 1^!.'' '^""y of September lasf, 
»'e full sum of £75. for three years instal- 

^um of £,f i '""^T' ^^"k P-'d' whereas Ihe 
sum or £15 9s. 9d. only has been paid by 

the said John Williams, xvlw still delavs and 
refuses to fulfil the conditions of tlfesa"d 
"jortgage-deed ; petitioners, therefore hum- 
Wy pray that your Honour will be p eS 
to grant a ru\e that the said John miliaml 
may appear in this Honourable wt To 
show cause why the said mortgage shall not 
bQ foreclosed for the indemnification of pe- 
titioners under the said deed; and as in 
duty ,bound petitioners will ever pray, &c! 
For Petitioners, i j» ^. 

<Jf 1 I ' J^^^ SIMMS, their Attorney. 
St. Johns, Newfoundland, 9th Oct. 1823. 

««rfi^*/"l®r*'' Ji''''^ ^^»se be issue?^ an* 
notified to John fViUiams, in order that he 
jnay appear in Court on Thursday, the 16th 
Ocober instant ; and let also a copy of thi» 
petition be served on him. * ^ 

By the Court, 

James Blaikie, C. S. C. 

, ^greeably to the rule granted on the 9th 
mstant, John Williams this day appeared in 
Court, and stated that he had failed in 
paying the yearly instalments to the petition- 
ers for several years, and that he had no 
means whatever of paying the debt now due 
10 them. Under these circumstances, the 
Court ordered the mortgage to- be fore- 
closed; and directed the High S^ieritf to ad- 
vertise John fniliamss interest in the mort. 
gaged premises to be sold by public auction, 
at llie Court-house, on an early day to b.» 
iiaraeu uy jijm. 



ceding year, untiJ 


f iJeptember lasf, 

liree years instal- 

paid, whereas the 

»s been paid by 

still delays and 
ions of the said 
, therefore, hum- 
will be pleased 

1 John fVilliams 
Jrable Court, to 
)rtgage shall not 
lification of pe- 
eed ; and, as in 

1 ever pray, &c. 

\eir Attorney. 
th Oct. 1823. 

! be issuer* and 

order that he 

•sday, the 16th 

► acopy ofthi* 

IKIE, C. S. C. 

ed on the 9th 
y appeared \xk 
had failed m 
the petition- 
at he had no 
debt now due 
nstances, the 

to- be fore- 
Slierilf to ad- 

in the mort- 
iblic auction, 
ly dav to bi» 

- y - - 


John Ebsary ai;rainst Hernaman & 

£R Curiam. This action is brought io 
try \X\e possessory title to a piece of ground, 
on which the defendants have erected a fish- 
nake, and which the plaintiff claims a right 
^o. J shall, therefore, consider it as an ac- 
tion of ^ecfm^^. Now» an undisturbed-BLOs- 
session for more than twenty years of the 
ground in question by the plaintiff, and those 
under whom he claims, has been clearly 
prov-ed; and, consequently, according to 
established prmciples of law, the plaintiff is 
entitled to the possession of this ground, 
unless there be anything in the Act of the 10th 
and nth William III., c. 25., to debar him 
{rora that right which he would undoubted- 
ly have acquired by the general rule of En- 
glish law. On the part of the defendants 
It IS contended, that the statute just cited 
does oppose a bar to the plaintiff's action: 
and they rely for their defence upon the 6th 
section of that Act, which enacts, "that per^ 
; sons who, since 1685, have detained any 
stage, cook-room, &c. shall relinquish the 
same to the public use of Jishing ships:' 
p. ; and, also, upon the 6th section, which 
directs " that no fisherman or inhabitant ia 

« ?.!r^Si""**h^' '***"' ^' any time after the 
25th xMarch, 1700, seize, take up, or pos- 
sess any of the stages, cook-rooins, beach^ 
es, or other places, which at any time 

"since the year 1685 did, or at anv iZl 

; ^«7ft«r,Bhall, belong to any Lb^Jg-sh^p 
or ships." To this defence it seems, how^ 

ever, a very satisfactory answer, that ther« 

i%"?^T^.I^*»^!^^.«^ l» *h« case, that th^ 
gr««,.« «s uispuie aas oeen used by the Hih* 
•1^,*%* foir curing their fish since: mSi 

3f ' 



October 28/A. 

In a eontroveriy 
between two inha'* 
bitants of this is- 
laod, claiming a 
permanent possess* 
ory title (o a piece 
of land, the provi* 
•ions of tbe 10th 
&nth Wni. III., 
c. 25. s. 5 and 6, 
cdnnot be set up 
by one of them aa 
a bar to the claini 
of the other ; but, 
as between thess 
parties, twenty 
yeart unditturbed 
and adverse posieU" 
ion will confer • 
perjeci right of pot', 







raised in an action between the fisl^nT ad- 

fwren'thrr'" '"^^*''*^"'' (orperhap^sbe- 
and nor h r'^"''"'"^"' «"'» an inhabitant,) 
and not between two inhabitants, who are 

erourTJj *h r™ ?"^ permanent interest in 
the fashing-ships since 1685. How far the 
faTrTo? ?' '''1 ^'' '"^^ control the ^eie! 

the ; J/ «r ''f ''' ^^ /'^wmion. and not 
i^^rtg/te of property, which 1 consider a*. 

pa'Iies'tui";" ''""'''T^y between tL:: 
parties, and i am perfectly satisfied that 

October 90th. -Estate of Joseph Stuckless, deceased. 

Order upon ex* 
•colors to thotr 
cauie why • party 
claiming tn iote- 
rest in I he proper. 
»y of their testator 
■hould not bo per. 
miiiad to rscaira 
tbc same. 

-En compliance with the nrnver r.f 4U ■ 

lets, of Twillmgate, deoeaserf .•» 4 .!,• J 
orderea by the 6oJrt:^hat .vti^l'^^^^ 

"ey ^ave, v,h, .the petitioie^Tii-"^ 



only be properly 
1 the fishing ad- 
, (or perhaps be- 
1 an inhabitant,) 
bitants, who are 
10th and lith of 
lanent interest in 
lied to the use of 
•. How far tbe 
control thegene- 
2ars undisturbed 
•ight of property 
itself, is a ques- 
Iled upon to de- 
ssession, and not 
I 1 consider as 
y between these 
tly satisfied that 
joyment of this 
t to entitle the 
of it ; and that 
1st, accordingly, 



•ss, deceased... 

yer of the pe- 

' -fosepA Siuc/c^ 
hkia this day 
fcutors named 
letit of Jbj/»pA 
Br in their pro- 
on or persons 
lalf/ ap'pear Jn 
's,on tbe 15th 

—^v, « auj 

AYarftf, ought not to take a distributable 
share, in right of his late wife, Susannah, of 

I the property of her deceased iatUer, Joseu/i 

f Stuckless. 


Memorial, and Order thereon. 

l.^N this day, a memorial was presented to 
the Court, from Mr. Kelsauy of Trinity, ac- 
companied by an affidavit, praying that the 
several suits now pending against him in the 
Supreme Court, might be allowed to staad 
over until the spring of the year, as he could 
nat attend at St. John's with the necessary 
witnesses for his defence. 

The Court directed the said causes to 
stand over until the first day of May next : 
and, in the mean time, ordered Mr. Kelson 
to pay the plaintiffs such sums as shall ap- 
pear by his accounts to be due to them^ 
without prejudice to either party. 

Case of the Brig Atalanta submitted to 
the consideration of the Chief Justice. 

»■"■■■ " / ■ ■ .. ' ' '•',.'' ^ 

HE Brig Atalanta sailed from Liverpool 
lor St. John's, Newfoundland, with a cargo 
of merchandise, partly the property of the 
owner, and partly on freight belonging co 
different persons. On arriving on this coast, 
she ran on shore on Cape Ballard, in the fog, 
and became a total wreck. Some of the 
.cargo ^o^ated and drove ashore, and was 
.picked up by persons belonging to Renews 
and other harbours, which was sold to thjc 
gross amount of about iiOO ; and broken 
■pars, sails, and other parts of the vessel to 


Ostein na. 

Novtmikr f om. 

The ttnifersnt 
rule reapeciin^ ihe 
claim of seamen lo 
wages, seems lo 
be, that Iheir claim 
shall always l»e in 
proportion lo tki 
freight earned, 
where there has 
been a due per« 
t'ormance of dmy 

OB thfill nftrt. 


"■mi l- 



< A 



iStc 4?"* ""^ ^^""* ^^^' ^"t of these 
C..e of tb. Bri, JS J^® Pf ? ""« ^^^^ saved them have 
-Atalanta. X}yc*. ®"^ ^^^^ P»»^» a salvage of one- 
' iialf, and some one-third : this will le^ve a 

^nir i'"™ *?'' ^^ ^^"^""^ »«d "nder- 
writers after paymg for the hire of a boat, 
Mrhich the captain hired to go to the wreck 
and the expenses of the master's protest, &c 
A hvr firkms of butter that were on freight, 

IZi^T P;^^^5i"P' ^hrch the owners have 
claimed, and paid the salvage for. 

Decree thereon. 

thMf^S.^r^''^^- '* ^s a remarkable fact, 
inat th<e claims of seamen to wages in the 

hvllf^Vu''"' ^^""^ neither been settled 

,,L. ^4K °^'''^ ^**^"*^' '*«»• ^y any decision 

jLh. ^T J" °."' ^^"^'« ^f^^a^- Chief 
Justice AbboU, in his excellent work on 

Merchant Ships after quoting the ordinan^ 
^^n^ k"**"^ of several countries upon this 
point, observes that he iias not been able to 
find any decision of an English Court upon 
It, and that the Legislature has made^no 
provision relating to it. This Court mu.t, 
therefore, resort to general principles, in ordei 

Itr't "P°^.*'? claims of the seamen 
under the particular circumstances of the 

derLil^'V' "°\»^rought under it. consi, 
deral on. Since, then, it is an established 
principle, that freight is the mother of wages- 
and since it appears from the statement of 
this case that5ome freight has been earned ; 
It follows, from the application of the gene^ 

casf H'ti!^ '^" P"'"''"^'^^ ^«^*« of the 
♦k! ' * 7 *^® ^^"^^^1^ are entitled either to 
the whole, or a part, of their wages. On 
the other hand, it is the leading priicicJe 
upon which all n«r s.„i«- ,v- _"°_r". 'P.'® 

payment of wages are founded, il make tlie 



Out of these 
ved them have 
salvage of one- 
lis will le^ve a 
ers aad under- 
hire of a boat, 
o to the wreck, 
er's protest, &c. 
vere on freight, 
he owners have 

tnarkable fact, 
' wages in the 
ler been settled 
y any decision 
•fLaw. Chief 
llcnt work on 
g the ordinan- 
tries upon this 
1 been able to 
sh Court upon 
has made no 
is Court mu3t, 
ciples, in order 
»f the seamen 
itances of the 
ider its consi^ 
«n established 
ther of wages; 
statement of 
been earned ; 
of the gene-, 
facts of the 
tied either to 
wages. On 



ing principle 

regard to the 

to make the 

payment thereof to depend upon the swcess^ 1823 

Jul termination of the voyage; and in con- ^ , - . _ * 

formity to this principle, (it seems to be the Can of th. Bri. 

opmionofour ablest Judges, and best wri- Atalanta. 

ters upon maritime law, that the seamen 

ought to contribute, out of their wages, to 

the salvage upon recapture. {Abbott, 466 & 

467.) The same principle is equally appli* 

cable where, as in the present instance, 

a part of the cargo has been saved, after 

mpwreck, by strangers, without any co- 
opera on on the part of the mariners, who 

bad been previously compelled to abandon 

the vessel ; and the rule deducible from the 

two principles already mentioned, is, that 

the claim of the seamen to wages must 

ever be (where there is no fault on their 

side) in proportion to the net amount of 

the freight earned. As, therefore, the 
net amount of the freight upon the goods 
saved IS to the whole amount of freight 
which would have been earned by the ves- 
sel had she reached her port of destination 
m safety; so is the amount of wages to 
Which the seamen are now entitled, to the 
whole amount which would have become 
due *o them m that event: andtheCWr^ 
accordingly, directs that a payment of wages 
should be made to tbenj agreeably to this 
proporhon, - j 


■^Ijl^'lll »pl(l I 


.; ^ 



if (member lOlh 


Brjiba VT & Sheppard c6'mp*tSnant8, 

Trustees of Le Messuriek's Estate 

Held, firit. that 
the preference gi- 
ven by the 49tb 
Geo. IIL, 0. 27, 
•. 7, to the creditor 
whose debts were 
contracted within 
two years prece- 
diog the declaia< 
tion of insolvency, 
h, like the prefer> 
ence conferred on 
the creditor of 
the current season, 
confined to debts 
contracted for sup' 
plie$ furnished for 
the prosecution of 
the fitheries. And 
second, that where 
■ person carries on 
business to a great 
extent as •.general 
merchant, and is, 
at the same time, 
directly concerned 
in the prosecution 
of the fisheries, bis 
property and ef. 
lects, in the event 
of his insolvency, 
will not become /t< 
able to the law of 
wrrent tupply. 

«n<. 1^? ^^*"^,^®^'^ «^^^f»* arguments 
upon this case, and taken time to consider 

ihe important points which grew out of it, 
ine CAtef Justice no\f delivered the following 

-lJ?/*'T® ^'^^ raised two questions so 
1«? V"u^'^?'°^ '^^^« commercial intc 
rests of the colony, and, at the same titie, ac- 
comp^ied with circumstances ofsuchpe- 

n«Wnl '**^'- J' ^''.^* ^^*^ ^ '«°&' ««d even 
pamful consideration of them, 1 am now 

3« ^i'^'*u^'^' * j"^^™^»t "Po° these 
points without having been able to banish 

J^AoZ/y from my mind all the donbts whick 
have presented themselves in the course of 

?iJ' T.uuTT'- *'^'* ^^^ sake of perspici^ 
"y, 1 shall first give a siiccinct outline of the 
principal circumstances which occasioned 

tj^^TV'^'^-^ ''*^" afterwards distinct^ 
ly state the two important questions which 
have grown out of those circumstances ; and 
Ihff ' ,'^i^y. explain the grounds upon 
Vfbich my decision on them is founded; in 
as clear and intelligible a manner, as 1 can 
iM-om the facts which are admitted on 
both sides, it appears, that the insolvent car- 
ned on trade to a very considerable extent 
as a general merc/iant, in St. John's ; and 
that he also conducted a Jishert/, upon a 
pretty extensive scale, at Burin. In the 

K!h"''°" V^^^^f /r ^^J^^'ts, he con- 
tracted a number of debts ; and at the pe- 
mfo iu insolvency which took place in 
1819, there was one class of rrpHif^a »,Uq 
had demands upon his estate as sma'nts, 

'iCj,^' , 


■\"'t" ). ''I *•■ r- 

lEU's Estate 

reral argnracnfs 
ime to consider 
grew out of it, 
•ed the following 

'0 questions so 
tmmercial inte« 
e same tine, ac- 
ces of such pe- 
long, and even 
em, 1 am now 
lent upon tiiese 
able to banish 

doubts whick 

the course (rf' 
ke of perspicu>- 
rt outline of the 
ch occasioned 
wards distincln 
lestions which 
mstances ; and 
grounds upon 
is founded, ill 
mer as I can. 

admitted on 
J insolvent car- 
lerable extent, 

John's ; and 
^t^nh upon a 
•irin. In the 
?cts, he con- 
nd at the pe- 
took place m 

as servants, 


;. » 

for wages: artother class who, supposing 
that the law relating to - current supplies" 
IS appl.ctbje to such a case as this, might 
Ciairn as snppliera for the current season! a 
ilnril class whose credits were given within 
two years before the declaration of insolven- 
<^y : and the complainants in this, suit, with 
>vhom the insolvent had contracted his debt 
several years before any of those comprised 
m the foregoing classes. Under a liability 
to claims of these four descriptions, the es- 
late ot the insolvent was transferred td trus, 
tees; who out of the proceeds thereof, have 
discharged the whole amount of the servants' 
^yages. and have also paid a dividend of five 
shillings in the pound upon all the debts in- 
curredmtlie years 1818 and 1819, without 
hitherto making any distinction in favour of 
I the airrent supplier (a); but yet refuse to 
perniit the complainants to participate in 

their ha.id8 funds more than sufficient to 

W lli^''"' ^^"^.'^ f: The questions,: there, 
fore, that arise out of these facts, are. whether 
or not the persons who have become ere- 

the 49th.Geo. Jll. c. 27, s.7. to be paid 2a*. 
n the pound, before the creditoirs of an earn 
lier date can claim flwi^^ dividend ?^And 
2dly. whether or not that priority in orde^ 
of payment, which by the same section. is 
conferred upon the current supplier, extends 
to any dass of the creditors of a person 
largely engaged in general trade.: and at the 

establishment? This latter >pointJ»as7nS^ 
(o) There 8«(Bm« to bate'' btettfi«BMrlwMrf»J*wA- ,al 



filtSHAUT 4e 


,& , ■' 

Trustees of Lb 


instate. . 




•• ii 




Trui(e«t of Lb 





indeed, been absolutely mooted hy the paf* 
ties to the present suit ; but from the ac- 
counts laid before me, I perceive it has been 
m some measure reserved by the trustees as 
a legal problem which has not yet been 
solved : and as the determination of it is es- 
sentially necessary to the settlement of this 
estate, 1 have been induced to examine it 
with a good deal of attention, and am now, 
probably, as well prepared to deliver an opi- 
nion upon it as I shall ever be. It is, there- 
fore, I think, proper that 1 should seize this 
opportunity of declaring my senliments upon 
It ; and 1 shall accordingly do so, after ha- 
vmg delivered them upon the former ques- 
tion, "which constitutes, as 1 have already 
observed, the more immediate subject ofthe 
present suit. 

Before Mr. Forbes came to this island, it 
had been uniformly holden by the Courts 
hf re, that the expression •• creditor for sup- 
plies, ' which is used in the 49th of his late 
Majesty, was intended merely as a '^person'* 
arum designatio," or a description of the 
persons who were to be entitled to a prefer- 
ence undpr that act ; and that, consequent- 
ly, a " creditor for supplies" had a right to 
a priority of payment of the «;Atf/c amount of 
his account for the "current season," (which 
word "season" was then understood to 
mean the same as 3^mr,) although it might 
contain, in addition to some things necessa- 
ry to the fishery, a still greater number of 
articles in no respect connected therewith. 
Koon after bis arrisral, however, this question 
was brought before him, by an appeal from 
the judgment of one of the Surrogates, in a 
case which arose oat of the insolvency of 
Messrs. Crawford ^ Co. ; and he the»e deci- 
ded, in opposition to a loner series nf nre^A. 
dents, by Which the opinionof the Surrogate 

IE COtJttT» 

oted by the paf* 
tiut from the ac- 
ceive it has been 
^ the trustees as 
IS not yet been 
lation of it ises- 
ettlement of this 
1 to examine it 
ii» and am now^ 
3 deliver an oj)i- 
>e* It is, there- 
lould seize this 
sentiments upon 
do so, after ha- 
ll e former ques^ 
1 have already 
te subject ofthe 

> this island, it 
by the Courts 
reditor for sup- 
49th of his late 
y as a *' person* 
ription of the 
ed to a prefer- 
it, consequent- 
had a right to 
hole amount of 
eason," (which 
[inderstood to 
)ugh it might 
hings necessa- 
er number of 
ed therewith. 
', this question 
a appeal from 
irrogates, in a 
insolvency of 
be tbei e deci* 
ifies of Drece- 
tbe Surrogate 


I was supported, that the word "supplies'* 
must be contined to such articles as are 
commonly required in the Fisheries; and 
that the expression " current season " sig- 
nifies only that part ofthe year in which the 
hshery can be prosecuted. In shorty he 
construed this passage in the Act— "Every 
person who shall be a creditor for supplies 
furnished in the current season, shall be paid 
twenty shillings in the pound ; ** exactly as 
If It had been thus expressed :~Every per- 
son who shall be a creditor for supplies, 
shall be paid twenty shillings in the pound 
upon the amount of supplies actually furnished 
by him for the fishery within that portion of 
the current year in which it can he carried on 
Jn his judgment wpon that case, he takes a 
wide and comprehensive view of the eaxly 
cona.iion of this country, and ofthe peculiar 
usages and customs which had grown out 
of It ; and demonstrates, by a train of the 
most lucid and convincing arguments, that 
the provisions in the 49th ofthe late Kinir 
relative to the distribution of the effects hi 
insolvents, are remedial of the fnconvenien- 
ces resulting from customs no longer adapt- 
ed to the existing state of things ; and tha^ 
It ought, consequently, to be construed \\i 
berally, and in such a way as to repress th^ 
Jiischief, and advance the remedy.— Satis- 
fied, therefore, that it is impossible for me 
to place this matter in a clearer light than 
has already been done by him, 1 shall refer 
to his arguments in the case of Crawford's 
insolvency, as if they had been absolutely in- 
corporated m this judgment ; and shall con« 
tent myself with offering such additional o&i 
sermttens upon the design and object of the 
7th section ofthe 49th Geo. IIJ., c. 27, m 
will, 1 trust, justify the construction J am. 
now auout to pnt upon it ~ 





«Bd '''' 
Trqilcea of Lt 

Ealatt. '' 







TniitMg of Lk 



When a branch of producliFe labour is to 
be fostered, which requires a certain share 
orcat)itaI, aiid a particular sort of skill, and 
when the person who possesses the art and 
skill necessary for the successful cultivation 
of It, is almost always without money suffi- 
cient to carry it on, it is obviously a wise 
measure to give to men of capital a lien up- 
on the properly to be obtained by the em- 
ployment of a part of that capital in such an 
undertaking, as an inducement to them to 
advance it in a concern, where the party 
conducting it has no other kind of security 
to offer them. In such a state of things a 
lien upon the produce of the labour, and a 
P"?"(y of payment in cases where debts of 
a diflerent nature have been incurred, are the 
trOe parents of credit; and this was precisely 
the condition of the infantile establishments 
in this colony. It was, therefore, natural 
that such a lien, and such a preference with 
respect to payment, should rapidly grow 
into a custom (i) ; and it was also wise and 
proper for -the Courts to sanction and favour 
such a custom as far as possible. But it is 
^uite evident, that the same custom which 
IS thus capable / creating and supporting 
credit in one stateof society, will undermine, 
shake, and destroy it in another. Thus it 
may be advanced, as Jan axiom obvious to 
the understanding of every commercial man, 
that mercantile transactions c»uld not pos- ^ 
sibly be carried on upon a forg-e scale if such 
a custom were to be extended to them ; be- t 
cause as the return upon these transactions 
w often vQvy slow and distant, they demand 

(*; It ii worthy of remark, that the sopptier'a lien 
opoo Ibe produe. of a fiabiog.royaga ttiil r«au aolin ly 
upon cmUvrn, and has nef»r bam dibar diraetry or iodi. 
wctlj rtflogoized bj any part of the kz scripta of iba 

il£ COURT, 



:tive labour is to 
a certain bhare 
lort of 8kjll, and 
sses the art and 
issful cultivation 
lit money suffi- 
^bviously a wise 
ipital a lien upr 
led by the emt 
ipitdl in such an 
ent to them to 
'here the party 
kind of security 
itate of things a 
e labour, and a 
where debts of 
ncurred, are the 
is Was precisely 
refore, natural 
•reference with 
rapidly grow 
also wise and 
ion and favour 
ble. But it is 
custom which 
nd supporting 
ill undermine, 
her. Thus it 
m obvious to 
amercial man, 
mid not pos* 
re scale if such 
to them; be- 
B transactions 
they demand 

h« sopplier't lien 
•till TMit eolinljr 
r directly or iadi* 
kx icripta of iba 

a credit which must be continued/or several 
years; and it i.s maaifestiy impossible that a 
credit of this kind ca.n Jtourish (if, indeed, it 
can exist at all) where the creditor, by for- 
bearing to exact payment of his debt for a 
year or two, will incur the greatest risk of 
losing it altogether. Wlien, therefore, New- 
foundland had begun. to emerge from a long 
period of rickety childhood, into a state of 
more promising and vigorous adolescence; 
and when in addition to the * planters,' who 
for a vast number of years had constituted 
nearly the whole of her sedentary popula- 
tion, merchants with considerable capital, 
or credit, had fixed themselves in all the 
principal ports of the island, the trade of it 
necessarily assumed a new and different 
character, to which the old customs of lien 
and priority of panment were, as 1 think I 
have clearly provec' idedly adverse. It 
was, consequent' , . found necessary to re- 
strain those customs to their peculiar, and on- 
ly proper object, i\\e fisheries ; and accord- 
ingly it is declared, in the 49th of the late 
K-ng, that, " it will greatly contribute to the 
'*• advanct inent of the trade and fishery of 
" Newfoundland, if such effects as persons 
" be omiug insolvent in the island were pos- 
*' sessed of or entitled to within the said 
*' island, should be divided among their cre- 
" ditors with more equality than hath hi- 
" therto been practised. It is the protessrid 
design, therefore, oT this Act, tp introduce a 
more equal distribution of the estates of in- 
solvents than bad formerly prevailed m 
Newfoundland.—- Let us siee, t^en, by ^hat 
means it purposes to effect this end. Noif, 
the 7(h secti(;>n enacts, " that in the distri* 
" bution to be made of the estate and Cj^ecb 
" of persons declared insolvent, ev^ ia^ 



TruDttN of Ls 

:< !, 



• Shbfpard 


Truateat of Lb 






;; ery, who shall be a creditor for waffef*. 

Shall first be paid 20*. in the pound, so 

u 5L"f '''" "«^^^^« ^^'^' go ; and in the next 
^^ P ace, every person who shall be a credi- 

" ItLr!"" l"ff '!^' furnished in the current 
season shall be paid 20,. in the pound ; 
and in the next place, every person who 
^hall have become a creditor within two 

'astly all other creditors shall be oaid 

mnr.irAr?t^^r '^' «^^« of making a 
more c<7Ma/ distribution of the property of in- 

nnH.i 1 ff ^"""""^ ^^ ^ P^'-^''" ^^ho does 
not mfe antly perceive, that if the second and 
third classes embrace creditors of even, de'- 
criphon, and are not confined to crilitors 
for supplies furnished in the fisherv the 

mLt ^'^^.'^l^^^lj^^'O" here directed ^; he 
inos.t ;,ar;i«/ and unequal that can almost be 

^ .^i?^^;/^!."''^' ^^"^'ty strongly suggests 
t^t theotodebtshould be^l Lch^^^^^^^ 

JURP " L!f '''' ^■'' r^^'l'ORE, POTIOR EST 

JURE, ,s the maxim by which every honest 
hon^ nf K •'' ^',',^"» ^' ^« »»^« ^ reasonable 

^l ^f.^-/ h'« , property to his creditors, to 

ihon to their respective demands upon him 
This ,s the principle upon which our ban™: 
rupt laws are founded ; and nothinff I 
conceive, short of such necessity as 1 have 
shown to exist with respect to the encon 

smallest departure from it. But so far are 

'tf±:h^''^^'-'P-^. trade from reqd! 
-«6 ««jr iviUAuuon 01 tins general principle, 



tditor for wages, 
current season, 
in the pound, so 
and in the next 
ihajl be a credi- 
d in the current 
*. in the poond ; 
I'ery person who 
itor within two 
the pound ; and 
8 shall he paid 
"ects will go," — 
^e of making a 
! property of in- 
irev^iled. But 
pson who does 
'the second and 
rs of every dei- 
2d to creditors 
he fishery, the 
Jirected is the 
can almost be 
Dngly suggests, 
\rst discharged 


h every honest 
the settlement 
s a reasonable 
em all ; and 
s, he will sur- 
s creditors, to 
m» in propor- 
ds upon him. 
:h our bank- 
i nothing, I 
Jsity as 1 have 
> the encon- 

justify the 
it so far are 

from requi- 
ral principle, 




that a deviation from it most, for the reasons 
1 have already detailed, be inevitably at- 
tended with the most mischievous and oer- 
nicious consequences to them. Still, how- 
ever, if It was manifestly the intention of the 
egislature to extend that exception, which 
they have unquestionably sanctioned in fa- 
vour of the fishery, to our commerce in s-ene- 
ral, this Court would be imperatively bound 
to give full effect to that intention ; and the 
Judge m pronouncing a decision, which he 
felt to be highly injurious to the interests of 
the colony, could only say, « Hoc quidem 


EST. (e) Indeed it has been observed by a 
learned writer, whose opinions seem to me 
deserving of much attention, from the sensi- 
ble arguments by which they are recommend- 
ej even where they are at variance with 
tC .M^ ''"'' »««-?-establi8hed legal rules, 
that the exposition of a statute is impera- 
iive, and not discretionary: and to qualify 
the express provisions of an Act, by excep- 
lons deduoed from its supposed spTrit. 
; however conducive to the justice of partil 

"d^.T."?r' w ^^'^'^ ^'«''"'"? prece- 
dent : (d) and to the propriety of this ob- 
servation with reference to the particuhr 
case to which it is applied by him, 1 give 
the most cordial assent. But words are 
merely the .t,^„. by which we express our 
Ideas; and to interpret these signs correctly 

*ion of using them. If their meaning was 
^holly independent of extrinsic circuSst^n! 
ces, and always umform. the Judges, whose 

f«r"''\Vl'^.'"'^"""^' ^»»d ««t to make, 
laws, would be bound to confine themselves 

(c) 3 Blac. Com. 630. 






Tnntees of Lp 





li •> ■ 







I'ruvteet of Lb 




strictly to the mere words of a statute. Td 
almost every word, however, there are seve- 
ral meanings; and all these are liable to vary 
materially with the manner and occasion qf 
using th^m. In order, therefore, to ascer- 
tain the intention of the legislature, as ex- 
pressed in a statute, regard must be had to 
the words-^to the context— to other Acts 
in pari materid («)~to the subject-matter of 
the law—to its effects and consequences— 
and to the reason and spirit of it rj") : and 
from a consideration of all these (and not 
Irom any one of them alone) the Judges are 
to deduce that intention which, when they 
have once discovered it, they must closely 
adh^r^ to, and rigidly enforce, without pre- 
suming to evade, or even to mitigate, the 
force of it, although it may be unwise, 
ov Gven unjust i for the power oi altering 
laws cannot be distinguished from the pow- 
er of »M<iA;m^ them, which the Judges have 
clearly no right to do. Jt is upon the 
ground, then, that the legislature did not 
intend, by passing of the 49th Q^o. 111., 
c. 27, to give tlie creditor of two years (un- 
less the debt were contracted for supplies 
actually advanced for the purpose of ena- 
bling the insolvent to prosecute the fishery) 
a preference over the creditor, of the pre. 
vious year, that 1 deem the complainants 
entitled to the relief they seek. The late 
Chief Justice has ably proved, that this Act 
is a remedial one ; and it is a fundamental rule 
of construcUon (/), that remedial statutes 
shall be construed liberally, and with refer- 
ence to the old law, the mischief, and the 

(t) Th.7ih MolioG of Ibt 32(1 Gto. III., e. 46. !■ in 
taoem maienA with the 7»b ■eelton of Ibe49th Geo. III. 
c. 27: a»d a comparison of the (wo oUuaet will, I ibink' 
Jorlily end tuppori ihejudBmenl 1 JuiMforaad «» •*.!* ess-' 

E cotiriT, 

f a statute. Td 
', there are ^ewe- 
are liable to vary 
and occasion qf 
•efore, to ascer-^ 
fislature, as ex- 
i must be bad to 
— to other Acts 
abject- matter of 
it of it (/■) : and 
these (and not 
the Judges are 
lich, wlien ihey 
ey must closely 
;e, without pre- 
lo mitigate, the 
ay be unwise, 
yer of altering 
I from the pow- 
e Judges have 
t is upon the 
stature did not 
i9th Geo. lij., 
two years (un- 
3d for supplies 
jrpose of ena- 
ute the fishery) 
or, of the pre- 
eek. The late 
. tliat this Act 
odamental rule 
uedial statutes 
md with refer- ^ 
chief, and the | 

. III., e. 46, it in 
be49tbGeo. Iir., 
kuaes (7ill, I ibink. 
ormad no iliia »••« 

*€ . 


remedy. Nay, so necessary is it in the 
construction of every statute to attend to 
the mischief which it strives to remove, that 
although penal statutes are to be construed 
stncthj, a deviation from the letter of them 
has sometimes been permitted, for the sake 
of repressing the mischief against which they 
meant to provide. Thus, ''the statute of 
♦ Gloucester, d. 5, which giveth the action 
of waste against the lessee for life or 
'•y^ars, f ^eaketh of one that holdeth for 
'term of years in the ;»/Mra/ number; and 
yet It appeareth, by the authority of Xif- 
J^ tleton, that although it be 2i penal law, yet 
a ^ uint for /«a^«.^ear, being within the 
r mischief, shall be within the same 
remedy, though it be out of the /e««. of 
^ the law; for. Qui hshet in liteba hje* 
«if-^K 'f^coRTicE."(^) Now, the toischief 
jvhich the legislature sought to remove by 
^he49th of the late King, was, \he unequal 
distribution of the effects of insolvents in this 
*«^ai and can we, then, suppose that it 
was their intention to substitute for the old 
method of distribution one still moreunequaL 
and totally irreconcileable with any view of 
local expedience and commercial policy? 
The limits withm which Mr. Forbes's mlr. 
ment has confined the preference to the crJ- 
ditor for supplies furnished in the current 
season are, I believe, perfectly agreeable to 
the intention of the legislature ; but it is 
much easier for me to persuade mvself, that 
the interpretation formerly given to this 

uZ^f.ul V^^ ^T^' ^^" ^^^'-''^^t' than to 
admit that the preference to the creditor for 

the current season was restricted to supplies 

Jor thejishery, whilst the pteference to the 

J?l,^°' ^h **> N°*"' ^'^ C-oAe call, thi, ..„„ ^^. 







Tlriitl«r« of LS 



j' i W. 






TruaUes of Lb 







creditor within two years is extended to 
debts of every denomination ; because by such 
a construction the Act would not only be 
still liable to all the objections which Mr. 
Forbes thought his judgment would remove ; 
but would also, in addition to them, be in- 
consistent, and, as it were, at variance with 
itself. Whatever objections, on the score 
of policy and expedience, may be nrged 
against a statute which should give to the 
creditor of the first year a preference over 
the creditor of the second ; and to the latter 
a preference over the creditor of the third 
year ; such a statute would, at least, be 
consistent; and it would be easy to undei*-'- 
stand^ though, perhaps, impossible to c^^£n<?, 
the principle upon which it was founded. 
But a statute which should prefer one de^ 
scription of creditors within the first year, to 
another description of creditors for the same 
period — neglect this distinction altogether 
when it provides for creditors of the second 
year— and yet give to tlie creditors of that 
year in general a preference over all other 
creditors — would, under every view J can 
take of it, be palpably absurd. JNotwith- 
standing, therefore, the ambiguity and seem- 
ing inaccuracy of the structure of the sen- 
tences in the 7thsection of the4dth Geo. III. 
c. 27, 1 am of opinion that the privileges 
conferred by it upon the creditor for the 
current season, and upon the creditor with> 
in two years, were in both instances intend- 
ed to be confined strictly to credits for sup- 
plies furnished to the fishery^ 

I come now to the second query arising 
out of this case ; and a& my opinion upon 
it has been formed upon the same view of 
the subject which 1 have endeavoured to 
support by the preceding observations, I 
shall not be obliged to dweil very long upon 


i^l extended to 
because by such 
juld not only be 
ons which Mr. 
t would remove ; 

to them, be in- 
at variance with 
s, on the score 

may be urged 
uld give to the 
preference over 
and to the latter 
iitor of the third 
d, at least, be 
e easy to under^ 
)ssible to defend, 
it was founded. 
Id prefer one de^ 
he first year, to 
OTB for the same 
ition altogether 
"s of the second 
creditors of that 

over all other 
rery view J can 
urd. Notwith- 
iguity and seem- 
ture of the sen* 
i the privUeges 
creditor for the 
e creditor with- 
istances intend- 

credits for sup- 

I query arising 
f opinion upon 

same view of 
endeavoured to 
observations, I 

very long upua 


It. By extending the law relating to " svp' 
ply " to the case of a merchant who is pri- 
marily engaged in general trade with all 
parts of the world, and only collaterally 
connected with a branch of the fishery, I 
think we should give birth to the three fol- 
lowing serious evils: — 
1st. An extreme difficulty (in some cases, 
% perhaps, amounting to an impossibility) in 
^ settling the estate of such a person upon his 
becoming insolvent; from the uncertainty 
which niust generally prevail with regard to 
the distinction between debts contracted fbr 
supplies^ and debts contracted in the usual 
course of trade. 

2d. A severe and very prejudicial re- 
straint upon commercial credit ; from the 
indisposition which would be naturally felt 
,| by merchants in other countries to entrust 
^ their capital with a person upon whose es- 
} tate and effects another class of creditors 
should possess a preferable claim. 

3d. A vast increase to the number of 
declarations of insolvency; from the appre- 
hension which would be always entertained 
by the creditors of the favoured classes of 
losing their " vantage ground " by delaying 
I CO enforce payment of their demands ; and 
from a cold indifference which this wou\d 
naturally generate with respect to the inte- 
rests of the other creditors, provided there 
were a <sets to meet their own claims. 

Of the policy 6i a legislative provision 
from which such consequences must flow, 
it is impossible to speak otherwise than in 
terms of censure ; but still, as I have before 
remarked. Courts of £qnity,as well as Courts 
of Law, have nothing to do with the const- 
^uettces of an Act of Parliament, except only 
m as far as they afford one important medi- 
um by which they may arrive at the Irue 







Triitteet or Lb 








\i 4 













Trustees of Lb 





meaning or real intention of it. My sole en- 
deavour has, therefore, been to ascertain 
the true meaning and real intention of the 
49tb Geo. 111., c. 27, with regard to the 
points now under discussion ; and after a 
most attentive consideration of what 1 deem 
tile proper indicia of its meaning, I am of 
opinion, that the legislature intended to re- 
strain by it an unequal mode of distributing 
the effects of insolvents, originating in a 
custom manifestly injurious to every other 
branch of trade except the fishery (for the 
promotion and encouragement of which it 
was still necessary), to debts contracted for 
supplies furnished exclusively for the purpose 
of enabling the debtor to cany on, or to en- 
large, a fishing-establishment. In other 
words, the article: composing the account 
must not only be of that description which 
are required for the fishery, but they 
must also have been furnished expressly for 
it, and under circumstances to induce a rea- 
sonable belief that the creditor looked prin- 
cipally to the produce of the voyage for the 
payment of his debt. The last of these cir- 
cumstances is, in fact, the only true basis 
upon which the creditors' lien, and right to 
a preference in payment, ought to stand; 
and 1 consider both of these as customs, in 
derogation of a general rule of law, which 
ought, therefore, to be construed strictly, 
and closely confined to their proper object. 
But every one must know that a credit of 
that nature to which 1 conceive the lien and 
priority of payment can alone attach, is ne- 
ver given to persons in the character of ge- 
neral merchants ; and upon this ground I 
hold, that the whole of the law relating to 
''supply'' is totally inapplicable to them.— 
In pronouncing this judgment I must, how- 

M7m> 9anmtki tUnt^ 1 L..»^ *. I -i i. <. 



it. My sole en- 
len to ascertaia 
intention of the 
1 regard to the 
ion ; and after a 
I of what 1 deem 
leaning, I am of 
intended to re- 
le of distributing 
orii^inating in a 
s to every other 
! fishery (for the 
nent of which it 
s contracted fur 
y for the purpose 
riy on, or to en- 
?nt. In other 
sing the account 
escription which 
liery, but they 
ed expressly for 
to induce a rea- 
tor looked prin- 
j voyage for the 
last of these cir- 
only true basis 
3n, and right to 
ughl to stand; 
e as customs, in 
e of law, which 
(istrued strictly, 
• proper object, 
that a credit of 
iive the lien and 
e attach, is ne- 
character of ge- 
this ground I 
law relating to 
able to them.— 
it 1 must, bow- 
lOt uciiu 


deliver my mind entirely from a number of 
doubts with which it has been impregnated 
durmg my investigation of this important 
case; and it is, accordingly, my most anx- 
ious wish, that it may be carried before a 
higher and more competent tribunal. The 
questions which it involves are not only 
momentous in their general operation upon 
the commercial interests of the colony, but 
also of some magnitude in their particular 
application to the present suit ; (A) and these 
considerations will, I trust, induce the re- 
spondents to appeal from my decision to 
His Majesty in Council. 




TrustMi of Li 


Stephen Ne«fport affainst James, Tho- 
1^. Mijs, and William Purcell. 

J HIS action was bronght to recover the 
sum of £20 lOs. 3d. as the balance of wages 
due to the plaintiff under a written agree- 
ment; and the Court gave judgment for the 
plaintiff according to the express terms of 
the agreement, after the Chief Justice had 
refused to admit evidence to prove what was 
the meaning of the parlies at the time when 
the agreement was entered into, as being 
contrary to the rules of evidence; though 
Jus Honour, at the same lime, informed the 
defendants that they would be allowed to 
adduce evidence as to any custom which 
might prevail in this island in relation to 
agreements of the nature of the one now 
nndeii consideration.. 

fA; Th« debt admitttd to b« du« bylh« iuolreat. to 
llie claimant^. asic^^niiiH ■ 


nft^n W.»» va^.^-l — A- «f ■ .• 

Nmcmber 15/A. 

Evidence !• not 
admissibls to prof • 
ibat ihe memn- 
ing of ]hd parlies 
to an agteemeiit 
was different from 
wiiat i{ appean to 
be by the wrilteo 
terms of such 
agreemtnt, takpff 
in iheir iitnal and 
ordinary seass. 






AovemAer 'iith. 

Order of Court 
upon a parly who 
was alleged to 
liave auffered a 
' coosiderable time 
to elapse without 
taking any steps 
towards the pro-* 
aeouijon of an ap« 
peal, to show 
ause why exeru* 
tion should not is« 
aue upon the judg« 
mentgiren against 

November 2itk, 

The lessee of 
government ground 
has a right, under 
the cuitom of ihie 
country, to surren» 
der bis lease upon 
the destruction of 
the prenises by 


Robert Evans appellant, 


The assignee to the estate of Thomas 

CoNGDON respondent. ' ' 

T the instance of Mr. James Cross^ the 
attorney for the respondent in the above-* 
mentioned cause — 

It is ordered by the Courty that the above- 
named appellant, and his surety in the ap-* 
peal, do appear in Court on Friday, the 5th 
day of December next, to show cause why 
the amount of the judgment of this Court 
against the above- 'tamed appellant has not 
been paid and satisfied ; or why execution 
8kould,notbe forthwith issued against the 
goods, chatties, credits, and effects of them, 
the said Robert Evcms and William Stafford 
Pope, the surety in appeal of him the said 
Robert £vam. ^^ 


Rex against George "Lilly. 

MmY this action, the Government sought to 
recover the sum of £36 from the defendant, 
for one year's rent of certain premises which 
had been leased to him. The cause stood 
over for consideration from the 22d ult., and 
the Chief Justice now delivered the following 
judgment upon it : — 

The defendant is the lessee of some Go« 
vemment ground, upon which there were 
certain houses erected, which were con- 
sumed by fire last summer ; and the present 
action is brought to recover rent for the same. 
In his defence, the defendant relied upon 
the following objections whicU were taken 
by kirn to the action : — 

— ^Tiiat agreeably to the decisions of 




that the above- 
irety in the Api 
Friday, the 5th 
3W cause why 

of this Court 
pellant has not 
why execution 
id against the 
effects of them, 
'illiam Steward 

him the said 

nent sought to 
the defendant, 
iremises which 
e cause stood 
i the following 

of some Go* 
ch there were 
:h were con^ 
id the present 
It for the same. 

relied upon 
:k were taken 

e decisions of 


the late Chief Justice^ upon cases which 

arose out of the fire by which this town was 

partially consumed in 1817, he had a right 

to surrender his lease in consequence of the 

destruction of the premises thereon by fire. 

Second.— That under the regulations 

adopted by the appraisers, appointed under 

the Ist George IV. c. 51, the houses which 

had been consumed by the late fire could 

not be re-Nuilt on the sites of the old ones ; 

and that a part of the demised ground had 

been taken from the defendant by the said 

appraisers for public purposes. That these 

circumstances, therefore, did necessarily 

cancel and annul a contract which was, in 

Its nature, entirely indivisible and incapable 

of severance. 

Third.— That immediately after the fire, 
the defendant tendered to the then Attorney 
General, as the proper officer of the Crown, 
the amount of rent due up to the period of 
the fire ; accompanied with a notice that 
defendant had abandoned the lease; aud 
that this tender ftnd notice were accepted 
of by him. *^ . 

^,'^'*»« question, whether the demolition of 
the houses by fire gave the lessee a right to 
Burrender his lease, and, by consequence, 
discharged him from his covenants to repair 
atid to pay rent, had now for the first time 
been raised in this Court, J confess,! should 
have felt great difficulty in deciding it in the 
aflirmative, even under the strongest evi- 
dence of a local usage which could be 
brought before me. In an excellent note upon 
Co. Litt. 67, a. Mr. Hargrove observes, that 
*• It has been doubted on the statute 6 Ann, 
" c. 31, whether a covenant to repair fi^c«e! 
II rallif, extends to the case ofjire, and so 
becomes an agreement within the statijtP r" 
but in Builock v. Vonmitt, 6 T. R. 650, it 

JR£x t. Lilly 


• rl 


was Solemnly decided.that a lessee of a hoase 
who covenants orenerally to bound to 
rebuild it if it l»e burned by an accidenta^fire. 
And it was held, almost* a century ago, in 
Monk V. Cooper, 2 Str. 763 that the lessee 
is liable to pay rent after the destruction of 
the pi( raises by fire, where there is a cove«. 
nant to repair, qualified with an exception 
of the case of fire ; which decision was re- 
cognized and confirmed by the Court of 
King's Bench in Belfour v. fTeston, 1 T. R. 
310, which was a stronger case than that of 
Monkv. Cooper, inasmuch as the plaintiff 
had neglected to rebuild the house after 
notice to him to do so. It was even deter- 
mined in Ellis V. Sandham,. 1 T. 11. 705, that 
under a power to tenant for life to lease for 
years, reserving the Mswwrf covenants, &c., a 
lease made by him, containing a pro visa, 
that in case the premises were blown down, 
or burned, the lessor should rebuild, others 
wise the rent should cease— was void ; the 
jury having found that sueh covenant was 
-unusml. Neither can a tenant be relieved 
in these cases from his covenant to pay relit 
by a Court of Equity, (re Ves. 117 ,•: Anst. 
687,) unless, perhaps, in tbe event of the 
landlord's having received the value of his 
premises by insuring. (Amb. 62 r.)— Such, 
then, being the settled law upon the points 
in England, I repeat, that if this had been 
res Integra in this Court, it would have been 
a subject of great doubt with me, whether 
evidence of a contrary practice in this coun- 
try could warrant a different rule of con- 
slruction upon leases of this nature ? But 
this identical question was brought before 
the Supreme Court in the case of Neivman 
V. Meagher ^ Others («) ; and Mr. Forbes 

(a) Ani» p. 207.— See also Carrell v. Carton. 140. 
anil "- -" - "• " • • '^» 

X-vWcil 7 



Icsseeofahoase bound to 
« accidentaF fire, 
century a{?o, in 

that the lessee 
5 destruction of 
there is a cove» 
th an exception 
ecision was re- 
V the Court of 
fTeston, 1 T. R. 
ase than that of 
as the plaintiflf 
he house after 
tvas even deter> 
T. 11. 705, that 
life to lease for 
venants, &c., a 
ning a provrsc^ 
e blown down, 
rebuild, other-^ 
-was void ; the 

covenant was 
ant be relieved 
ant to pay relit 
B. 117 ,•: Anst. 
e event oi the 
le value of his 

62 f.)— -Such, 
pon the points 
' this had been 
uld have been 

me, whether 
e in this coun- 
t rule of con- 
» nature ? But 
rough t before 
e of Netvman 
d iVIr. Forbes 

V. Carton, 140, 




there decided, that the lessee was entitled 1023. 

lo surrender his lease ; apparently upon tlio V-^^-v-^*^ 
pnuciple,that the cuHtom of this island to sur- Huxv. Uiay. 
render under these circumstances, amount- 
ed to exidence of d general ajrrccmcnt to sur- 
render in the event of the destruction of the 
premises by fire. From his judgment tliere 
was an appeal to his Majesty in Council; 
but it was, after argument, affirmed ; and 
It IS, therefore, ray duty to declare, in con- 
formity to that decision, that the defendant 
in this suit was at liberty to surrender bis 

The first objection which was raised to 
this action by the defendant, having thu« 
been shown to be sufficient to entitle him 
to a judgment in his favour, 1 might reason- 
ably declme a discussion of either of the 
other points urged by him , but as nues- 
♦jons may arise as to the operation of the 
1st G£o. IF. c. 51 upon leases, in cases 
under different circumstances from the pre- 
sent, 1 think 1 may possibly prevent some 
litigation by distinctly stating the grounds 
upon which 1 conceive that the appropria- 
tion by the appraisers, appointed under that 
statute, of a portion of any demised j^round 
to public purposes, has mt the smallest ten- 
dencn whatever to avoid the lease. 

in Hornby v. Houlditch (And. 40) it was 
held, that an Act of Parliament, which had 
absolutely taken from the defendants the 
ttjAo/fi of the demised property, did not dis- 
charge him from the payment of rent for the 
same ; and m his observations upon that 
case, Lord Hardwicke remarks, that "every 
''person is considered as assentintr to a 
public Act', and therefore the plaintiff 
must be considered as assenting to the 
assignment of the term to the trustees 
ac^viuiwjj IV iu«- provisions 01 the statute." 



• f . 


I \ 




Ris *. Lilly. 


Upon the same pHnciple, it seems to me to 
be perfectly clear, that both landlord and 
tenant must be considered as asHentin^ to 
the appropriation of a part of tlie demincd 
ground to public purposes, agreeably to the 
directions prescribed by the Ist Geo. i V. ; 
and as the 4th section of this Act expressly 

fjrovides that a compenBation shall be al- 
owed them, *' with reference to the value 
•* of their several interests therein," it was 
manifestly the intentioi, of the legislature, 
that the relation between landlord and te- 
nant should not, in any instance, be dis- 
turbed or affected by the operation of that 

With respect to the third point, 1 shall 
only observe, that if the defendant had not 
been entitled to surrender his lease, I should 
not have deemed the acceptance of the sur- 
render by the Attorney General binding up- 
on Government^ without further proof that he 
possessed competent authority to act in this 
matter on its behalf; but as the lease was» 
in fact, rendered void by the demolition of 
the houses, 1 am of opinion that the tender 
of the lease and rent to the Attorney General 
was, in the absence of the Governor, or of 
any person specially deputed by him to act 
upon such an occasion, sufficient, upon equi^ 
table considerations, to protect the de- 
fendant from incurring any liability to costs 
in this action. 



: couRt, 

seems to me td 
I landlord and 
as asMentin^ to 
)f tlie demised 
greeably to tlie 
I Ist Geo. IV. ; 
; Act expressly 
on shall be al- 
ee to the value 
Ijerein," it was 
the legislature, 
idlord and te- 
itance, be dis- 
jeration of that 

[1 point, 1 shall 
ndant had not 
lease, I should 
mce of thesur- 
iral binding up- 
ler proof that he 
ty to act in this 
the lease was, 
I demolition of 
that the tender 
tomey General 
lovernor, or of 
t by him to act 
lent, upon equi^ 
rotect the de- 
ability to costs 


Edmund Danson, administrator to the c»- 

tate of the Tate Timothy Canty^ 

appellant, and 

James Cawley, .Secretary to the Commtttee 

of the Friendly Insurance Socreiy of 

Harbour Grace, resfxmdent. 

J HIS was M appef it froir tbe Surrogate 
<>ourt at Harbour Gn Cf ; anii on this day^ 
the Chief Justice gave th > foU, vring judg- 
ment upon it : — 

PeirCwriam. The judg»ien» of the Court 
below upon thb case seems to have beea 
founded on the following considerations*. 

First. That the total los» of the vessel 
had been occasioned by the barratry ol one 
of tl>e seamen, and tJiat by the terms of llie 
policy, the insurers were not liable for los*- 

fes arising from that cause. 
2dly. That whilst the schooner wa» 
lying at Havre de Youx„ the master did 
not do all in his power to repair the da- 
mage vi^hicb the bowsprit had sustained 
in her passage thither ; and that he was. 
guilty of a flagrant violation of his duty 
in quitting the vessel imuiediately upon her 
Rtriking against the iee, at the lime when 
bis presence was. essentially necessary to- 
stimulate,, direct, and encourage the crew • 
and under circumstances which rendered it 
possible that the vessel might have been^ 
saved, if sufficient exections had been used 
by the mariners. 

3dly. That the vessel, at the commence- 
ment of the voyage, was not sea- worthy. 

Upon the two first grounds, J shall tJuch 
very slightly ; because if 1 am right in the 
opmion 1 have formed on the last of them, 
there can be no occasion for me to dwell 
ioag on the others. It is contended by "the 



Iim Kmibt» %itL. 

That rttfc m \\» 
fontljtution of Ih*- 
Marine in«ufatic«- 
•oBipajiws »f thi» 
wlaml^ wbi«b< di- 
reato. " tb«< th«M> 
** iball b« a pvevK 
'*oo». auirey of 
** cTary t«ss«I, op- 
** OD which an in- 
'^ susance i» di si^ 
" led, by iwo sur*. 
" veyoffr iiomina- 
" l«d by I be com- 
**pany, and that 
•* Iheir ciTlifioale 
" ahall form tlie 
" Rround>work of 
" Ibo policy," ic 
Inlmdid for ^e 
additional security 
of liie compHny ;, 
and cannot, roose- 
queniiy, di.p,,ve 
Ifaem of ih« ri)jlit 
to prove that a »fi,.. 
Ml t» wlHch such 
certificate bad beam 
granted by tba sur- 
vey ors waa, not- 
vitbsianding,. uk< 







appellant, that the evidence which was ad- 
duced at the trial of this cause, was. not 
Hufficient to authorize the Judge to con- 
clude that any act of barratry had been 
committed ; and he further insists that eve- 
ry suspicion of such an act is now removed 
by the record of the acquittal of the man who 
was indicted for it. Now, it certainly does 
apjpear to me, that the evidence of- barratry 
wis hardly sufficient to warrant the Judge 
jn treating it as conclusive proof. But al- 
lowing that the record of the acquittal of 
the man who stood charged with that of- 
fence is (a) admissible in this case, still it 
must be remembered that an acquittal does 
not ascertain facts, C^j and that the only 
conclusion to be drawn fiom it is, that the 
party was tried for the offence, and was not 
proved to he guiUy. If, however, the judg- 
ment of the Surrogate had nothing to sup- 
port it beyond the charge of barratry , I am 
inclined to think that it could not be sus- 

It is, unquestionably, the duty of the 
master to use every means in his power to 
keep bis vessel in a sea-worthy condition 
during the whole period of the voyage for 
which she is insured; and the Surrogate, 
whc is a naval officer of considerable pro- 
fessional talent,* was certainly more compe- 
tent to determine whether there had been a 
foilure of duty in this particular than I can 
possibly be. For the game reason, 1 am 
disposed to believe, that his censure of the 
conduct of the master in quitting the ves- 
sel when she struck against the ice, may be 
well founded ; though if I had been left to 
draw my own inference from the representa- 
tion which is given of the situation of the 

(a) As to ihit polnl, lae PhJI. od Ef id. 256. 
(6) Ouii. Nitti PriMi, 246. « , 

• Captain John Toup :Nieolaa, C, B. 


} which was ad- 
cause, was. not 
Judge to con- 
ratry had been 
insists that eve- 
s now removed 
of the man who 
t certainly does 
'nee of- barratry 
irrant the Judge 
proof. But al- 
the acquittal of 
ed with tliat of- 
is case, still it 
1 acquittal does 
that the only 
I it is, that the 
:e, and was not 
'evevy the jadg* 
othing to sup- 
bmrratryy I am 
>ald not be sus- 
hi -r 

e duty of the 
1 his power to 
}rthy condition 
* the voyage for 
the Surrogate, 
nsiderable pro- 
ly more compe- 
lere had been a 
Ular than I can 
; reason, 1 am 
I censure of the 
litting the ves~ 
be ice, may be 
lad been left to 
the representa. 
ituation of the 

If id. 25S. 


vessel at the moment, 1 should have con- 
ceived it to be one of such danger and des- 
peration asto justify every person belonging 
to her, in acting upon the principle of " sauve 
qui peut" 

In every insurance there is an implied 
warrantry, that the vessel shall be sea-worth v 
when she sails on the voyage insured; and 
if she be not so, the policy will be void, 
though both the insured and the captain 
believed her to be set worthy ; and though 
the insurer knew the state she was i as 
well as the owner, (c) But, on the part of 
the appellant, it is urged, that the question 
of sea-wortliiness cannot be raised in this 
case, because, by the original articles under 
which this Insurance Association is consti;? 
tuted, ii was agreed, that there shall be a 
previous survey of every vessel upon which 
an Insurance is desired,' by two surveyors 
nominated by the company ; and that the 
certiiicate of the surveyors shall form the 
ground-work of the policy. The produc- 
tion of such a certificate must, therefore, it 
is alleged, operate as an estoppel,^ and al- 
together prevent the other side from going 
into any proof that the vessel was not sea- 
worthy. Hence, it becomes necessary for 
me to decide, what is the true forc^ and 
effect of such a certificate. And here I can 
deny e no positive direction from Ute law of 
E^land, which can furnish no rule relative 
to surveys which are wholly unknown to it. 
In the practice of other coutrtrie&, and in ge- 
neral principles, 1 must seek, then, to disco- 
ver that light by which my determiniUion 
4ipon this point oaght to be gttided. 

By the law of Fraaoe,. it is directed tbatt 
tvei^ merchant ship, before her departure 
from the place of her out-fit, shall be sur- 
(o) Bl«r«b. on lufiiraact, n 1, |ibl6]. 











Yeyed by rertain officers appointed for that 
purpose, and reporte<l to be ♦♦«» bon etat dt 
nam^atiou;" but it is held by the ablest wri- 
ters, that these surveys can, at most, only 
^notd presumptive evidence of the sea-worth- 
iness of the vessel. These opinions are, I 
grant, not at all binding upon us ; and their 
influence must, consequently, depend solely 
upon the validity of the arguments and reasona 
by which they are enforced. Neither has it 
escaped my observation, that there is a shade 
of dtstmction between surveys directed by a 
general law, as a branch of national policy, 
and surveys prescribed iu^ an agreement be- 
tween the m^mediate parlies to tlie insurance, 
»ut still I am of opinion, that the arguments 
against the conclusiveness of these surv«»y8 
fkre.xnbolh instances, irresistibly convincing, 
-—buppose a life-insurance company sliould 
declare by one of its rtzles, that k would not 
effect an insurance upon any life, unless it 
was fqrnisbed with a certificate from a me- 
dical man of the state of the constitution of 
the party who wished to be insured ; and 
that this certificate should constitute the 
ground^work of the policy. I < ink there 
can be little doubt but that the ( ourts would 
tottstrue this regulation, as intended, for the 
additional security of the company; and 
would, accordingly, not suffer it to uphold 
the policy under circumstances which would 
have avoided it if no such certificate had 
been given, in the same manner, this ma- 
rtne insurance company, aware that it is often 
«xtreincly difficult to prove the want of sea- 
worthiness of vessels after a losshas been in- 
curred, apparently deiermxma.exabundmiti 
tautm, not to itmt, entirely to the chimce 
of obtaining such proof, but to clothe them- 
V^li^ ^f^^f^^^P^'^^ction against a loss 
arising jrosii a waoi of sca^worihiuess, by 


■■^' JTl iB if '- 


aointed for that 
'■ **en ton etat de 
y the ablest wrH 
, at most, only 
•f the sea^worth- 
opinions are, I 
n us ; and their 
y, depend solely 
nents and retisona 
JN either has it 
t there IB A a/iade 
lys directed by a 
national policy, 
m agreement be- 

> tlie insurance 
it the arguments 
f these surv^'ys 
ibly convincing^ 
)mpany sliould 
lat K would not 
ly life, unless it 
Ue from a me> 

I constitution of 

insured ; and 

constitute the 

1 *'ink there 

le ( ojirts would 

itended, for the 

company ; and 

Fer it to uphold 

es which would 

certificate had 

anner, this ma- 

3 that it is often 

lie want of sea- 

)8shas been in** 

d, ex abundanti 

to the chitoce 

> clothe them- 
n against a loss 
wojrthiuess, by 


requiring a certificate of the state of every 
vessel before they would effect any insu-. 
ranee upon her. Their intention, therefore. 
6eems to me to have beeh that the certiflcate 
should materially lessen the chances of their 
sutfenng from the want of sea- worthiness in 

H^hITi \T^ "'** ^^^^ ***^y should be ex. 
duded by it from settmg up thf. wantofsea^ 
worthmess as a defence to an action on the 

fhJ^'^'J'' ?^^^-^ ''^••'^«' '••'■« certificate, like 
he certificate directed by the law of France, 

Lv'iSL '/"'^ '^*'"J ^'^'''* or presumptive, 
evidence of sea-wcrtfainess. which still leaved 

R,? V 1 ^'^ *'**"''*''■ ^"^ P'"^^® the contrary. 

■Btit If 1 am correct in ihe view 1 have taken 
of the force of the certificate, I can have no 
hesitation whatever m affirming this judg^ 
ment; for the «ai;«/ Surrogate has decided, 
that the spring m the foremast of the schoo' 
ner, which the iqate has proved to have ex- 
isted before her first departure on the voy- 
age, amounted to fe want of sed-worlhiness ; 

adopt bis decision on this point, ^"Cuique 


««, therefore, my opinion, that this casi was 

Th^f *K ^ -^T"^^'^ ^y '^^ Surrogate ; and 
that this judgment ought to be affirmed. 


titji lij' 

MifV Y'}!')' 


"5 .fiiriii'jf 

^J 'iil^h^f; Sflj 

:^'-f--v'-sit hriR . v,oe,, „p.^ C'^tHm «>;{* ,f>ir' •/ 


Dan SON 


"hfiiK.'f 1 

t'.k. Ill milt 

i'ly/kith i)i 

■I' ■ ■■ I' in-i/niiin 

• iuj!yfl(n| 

'I*' »IU»iis 

lt9J) hiUi 

a-itiin V, 


)Jti> (^^3 


.■ ; 

•t,>jv;. /; 

■ (4 


« 'I 





1 ( 

i m 

Urn §y 

;.: m 


tm S 


^^H^^Heii L J^^ 



H J 



December lOth. 

A strict aJhe- 
renue lu ihe FORMS 
of comniisiions 
used !» Enuland, is 
not nocts^ary in 
commissions issued 
iu this country. It it 
sufiicirntif there is 
no departure/m «u6« 
f':nce, from ihota 
priDcipIvs by which 
alone (be vahdity 
of all commissions 
ought to be tried 
and determined io 
a place so peculi- 
arly situttled and 
circumstanced as 


William Dawe against io-Aia Brooi^, tVlL- 
LiAM Oart^ir, George Holbrook, Pe- 
TEii W. Carter, John TErrington, & 

^^' "William Haly, Esqrsk '■ . 

T' -■ j«}t:> J, ■■ 
H'E circumstances which gave rise to 
litis important action^ and the proceedings 
which accompanied the, are parti- 
cularly described and detailed in ihe follon^-* 
jng elaborate judgment :^^'i» '3Jflonfi^ai> vrtj 
. Pp" Curiam, TJ rged by the plkintiff, 
iwKo ti» on the eve of departure from this 
.country, for a judgment in this case, 1 con^ 
'sidee qayseir bound to comply with bis re- 
quest, although the extreme pressure of bn« 
siness upon ihe Court, Et this season of the 
,yeaiv has necessarily prevented me from be*- 
■stoAring that time and. undivided attention 
upon it WMcbv in every :point of view, it 
«eems to demand. A question has, indeed, 
been raised by it so novel, so complex, and 
so important, that 1 should distrast my abi- 
Jity to decide it, even after a long, patient, 
and dispassionate investigation of it in all 
its bearings; andas 1 have only had leisure 
to look cursorily into a small number of the 
authoritios which I was desirous qf consult- 
ing upon it ; and as I am entirely cut off 
from every communication with any profes- 
sional person capable of assisting my re- 
search, or of removing the doubts which 
have frequently pref ented themselves in the 
progress of it, J am ic . frcm reposing entire 
confidence in the determination 1 have, at 
length, formed upon it. 1 have, howr rer, 
the satisfaction to know, that there is a 
tribunal capable of correcting my errors, to 
which the parties can resort ; and the strong 
conviction I f^el that mv iudfirment. on 
whichever side it may be given, will be car- 

J^ip»,,te&««-. 'j^ 


loLBROOK, Pe- 

h gave rise to 
he proceedings 
of it, are parti- 
id indie follow-* 

jr the plaintiff) 
eurture from tbis 
ais case, 1 conr- 
ply with bis re- 
pressure of bn« 
is season of the 
ed me from bet- 
iyided attention 
)int of view, it 
on has, indeed, 
a complex, and 
distnist my abi-> 
a long, patient, 
;ion of it in all 
mly had leisure 
I number of the 
rous of consult- 
entirely cut off 
'ith any profes- 
ssisting my re- 
i doubts which 
leroselves in the 
r>?posing entire 
tion 1 have, at 
have, howf ;er, 
that there is a 
ig my errors, to 
; and the strong 
judgment, on 
'en, will be car- 


ried by appeal to that tribunal, considefably 
iessend^ the feelings of responsibility under 
which 1 should otherwise dct; by rendering 
my ^lecision of comparatively trifling moment 
!!!i u ^'^^^''^sts «^ the parties. Having offer^ 
ed these observations in extenuation of those 
defects which, i have reason to fear, may be 
discoverable in some parts of thb substance, 
as well as m the form,, of this judgment, I 
^hallnow state the leading-circumstances of 
the case upon which; it is my dtttj; in (he 
fifstinstance, to decide; mh ),{f rf». v r^t, 
Ihe plaintiff brdught an action of trespass 
against the defendants, and declared against 
them, m one count, for false imprisonment 
specially; m a second, for false imprison- 
ment generally : and, in a third, for a com- 
mon assault. To this declaration the de- 
fendants pleaded, ore tenus, first, the general 
issue, not guilty; and secondly, a justifi- 
cation ; setting forth that thev were regularly 
appointed commissioners of Oyer and Ter^ 
mtner, under a commission from his Excel- 
lency the Governor, which they pi^.:.iced- 
and that whilst acting as such, they did 
commit the plaintiflffor repeated contempts 
ottered to them by him in open Court. To 
the latter plea the plaintiff replied, that the 
commission under which the defendants 
acted, was altogether invalid and illegal • 
and m support of this replicction, twelve 
exceptions were taken by him to the com- 
mission. The trial having thus been entered 
on, and a vast deal of evidence produced 
on both sides, I told thejury, in my charge 
to them, that if the defendants were appoint- 
ed commissioners under a legal commission, 
they undoubtedly had a right to commit for 
contempt; and that it was not competent 

to tblS Uourt tn innitir^ i«»^ 4I : T — 

c«8 under which they exercised that right ; 




BitOOM, &c. &c. 






Broom, &c. Ac. 

1 i 

iifit that 1 was not then pf';'pared to I'va 
them a positive op>inoi» Kjitu^ nhe kgaHty c f 
the ponimis»ion, because my luiud wa^i by.' 
no means mide up o^i^ that point. That the 
' course, then^Vre, which 1 would recom-- 
mend them to [uirsue, would b ? t© deterrnine 
what damages the plaintiC ought tu receive,, 
if the d«3fendank& W'iirercOt sufkH^fed to pro-- 
tectioo under their €0i>i»i8sioH ; imd to re- : 
fer that question to ihe futntM decision of 
th e Court, bj a special verdict.. Under this 
direction the jury, after a deliberation ofse*. 
Yeral hours, returned the fotllowing verdict : 
" The jury— finding tbaA the defendants* 
wereappointed by biftEicellency Sir CVior/e^r 
Hamilton, the Governor of tiiis island, un-^ 
der a certain commission '^i Oyer and Ter- 
miner, dated 12th September, 1822, where- 
upon they did assemble and act as a Gourt; 
and did, on the 4th day of October, fine the- 
plaintiff for an alleged contempt of Court,, 
and on his refusing to pay the same, did 
commit faim< to prison, where they kept him 
in confinement until he paid the same, oik 
the lOth day of the said month— feel them- 
selves incompetent ta say if the said Court 
was, or was not, legally constituted, and 
pray the opinion of tiie Court upon thia 

** The jmry therefore find,^ specially (assu* 
ming the defendants to have been acting 
under an illegal commission), for the plaintiff 
—one hundred and fifty pounds damages." 
It is upon the grour ^ then,, that the 
commission is illegal, th;' e plaintiff must 
lay bis claim to a j^^dga t on this verdict; 
and I, therefore, gav >th sidesan oppor- 

tunity of submittin^^ f^itional observations 
upon it to the con^'jii^'^tion of the Court. 
J n this argument, hov^cvan no new points 
were taken by either sick nor any further 



»rt^.>ared to |;tY» 

ny luiuil waa by 
noint. That the 
I would reoom*^ 
Dught to receive,. 
£ntit1i<&d to pro-' 
ibvi ; iiikd tore-: 
urc decision of 
ict.. Under this 
eUberation of 8e> . 
Uowing verdict : 
ilhe defendants*: 
lency Sir Charlesr 
r tills island^ un^ 
'Oyer and Ter^ 
jr, ld22, where- 
^ act as a Court; 
>ctober» fine the 
empt of Court». 
y the same» did 
e they kept bm 
1 the same, on^ 
ith— feel them- 
f the said Court 
onstituted, and 
ZoMti upon thisi 

specially (assu'^ 
ive been acting; 
, for the plaintiff 
nds damages." 
then^ that the 
e plaintifi* must 
jn this verdict ; 
sides an oppor- 
al observations 
Ml of the Court, 
no new points 
lor any further 


authorities cited in support of those wliich 
^ere brought forward at the trial. Those 
were, on the part of the plaintiff— 

Ist. That the Commission does not run in 
the King's name. 

2d. That it gives the Commissioners no 
authority to inquire by the oaths of good 
and lawful men of the island. 

3(J. That no day, nor place, is set forth 
when, and where, the commission is to be 

4th. That no place of jurisdiction is as- 
signed, within which the offence must have 
been committed. 

5th. That the offences which the Courf 
was to have power to try, are not enume- 

6th. That none of the Commissioners are 
selected for a quorum. 

71 h That a father and son are joined in 
the Commission. 

8th. That the commissioners are to hear 
and determine according to law and justice; 
and not specifically according to the laws 
and customs of England, 
;. 9th. That the number of commissioners 
necessary to constitute a Court is stated to 
he five m one] part of the commission; 
' whilst, m another part, power is given to 
^any of them, without restriction as to nura* 

10th. That it contains no precept to the 
Sheriff to summon a Jury. 

nth. That it is not tested by the Governor. 

12th. That it is nneiet the private seal o) 
the Governor, and not under the seal of t/ie 

To these objections the defendants an» 
swer: That they are all founded upon a 
variance, m point of form, from the Commis- 
sions of Oyer and Terminer issued in Eag- 






Broom, &e. &9. 





1)1 J 





Bboom, &c. Sec. 


land ; and that an adherence to those rorina 
cannot be necessary in this country, becau8u 
they cannot, by any means, be made tu 
apply, in a number of particulars, to the 
actual circumstances and condition of it. 

That the Commission under which they 
sat is the same (with only one very trifling 
difference) as a// the Commissions of Oyer 
and Terminer which have been issued in 
Newfoundland from the first constitution of 
such a Court in this Island in the year 17<>0. 

That within the long peiiod of seventy and 
odd years, a considerable number of these 
Commissions had issued ; and that several 
person^ had suflfereil capital punishment un- 
der the sentence of Courts constituted by 

That the proceedings of those Courts must 
have often come under the review of (he 
Government at home; inasmuch as paidons 
had been granted by [lis Majesty to felons 
recommended by the Governor to the Hoyal 

That John Reeves^ Esq. who had been 
Chief Justice of the island, and whose legal 
acquirements preclude the supposition that 
he could have been ignorant of the form of 
the Commission of Oyer and Terminer used 
in England, had sat, as first Commissioner, 
under a Commission of nearly the same form 
as the one which the plaintiff now sought to 
invalidate; and that a Commission which 
had been sanctioned by the approbation of 
so good a lawyer as Mr. Reeves — recogni- 
zed, in a number of instances, by the public 
departments in England — and uniformly 
acted upon in this colony, fronii the earliest 
institution of a Court of Oyer and Terminer 
— must not only be substantially right, but 
also suitable, iu poiui of form, to the cif- 
cumstances and condition of the country in 
which it has been used. 




) to those forms 
ountry, because 
IS, be made t« 
ticulai'^!, to the 
nditioii of it. 
del* which they 
ne very trifling 
ssions of Oyer 

been issued iu 
: constitution of 

the year 1750. 
:l of seventy and 
lumber of these 
nd that several 
punishment un- 

constituted by 

ose Courts must 
'i review of the 
inch as pai dons 
ijesty to felons 
or to the Royal 

who had been 
md whose legal 
lupposition that 
t of the form of 
Terminer used 
y the same form 
f DOW sought to 
mmission which 
approbation of 
\eeves — recogni- 
3, by the public 
and uniformly 
}in the earliest 
r and Terminer 
tially right, but 
rnu, to the CiT- 
f the country in 

' The defendants further contended, that, 
although the Commission were altogether 
illegal, it would still furnish a justification 
of their proceedings under it; in the same 
manner that a constable, or other oflicer, 
may justify an arrest under an illegal warrant. 
But they appear to me to labour here un- 
der a very great mistake ; for, in the first 
place, there cannot, 1 think, be the slightest 
analogy between a Commission conferring a 
judicial authority, and a warrant command- 
ing a wiww/mo/ ac/ ; since it is always op^ 
iional with the Judge to exercise his autho- 
rity or not, whilst the officer is under a 
positive obligation to execute the warrant 
directed to hira, and is entitled to indemnity 
upon the principle, (a) *• Quicunque juisu ju^ 
dicis aliquid fecerit, non videtur dolo malo 
fecisse,quia parere necesse est." Jtis the 
obligation he is under lo obey, which consti- 
tutes his claim to indemnity. And, second- 
ly, though, in conformity to this principle, 
the statute of the 24th Geo. Jl. c. 44, does 
protect an officer who executes a warrant 
'^properly penned;' {b) even where the ma-* 
gistrate who issues it has exceeded his juris- 
diction, yet the officer still continues respon- 
ajble for anything done by him under a war- 
rant void from an irregularity in the form oj 
it : so that, admitting that the rules which 
have been established with regard to war- 
rants may be extended tojudicial Commis- 
sions, the defendants in this suit could de- 
rive no benefit from this admission; because 
the objection here is, that the Commission is 
improperh penned, and not that the Govern- 
or wanted >Mm</ic/io», or power, to issue it. 
J shall, therefore, confine myself entirely to 
the question, whether the Commission is 

(a) Til 3aia of (be Marsh»IseP, 10th R«p. 70. / 
(6; Bhck. Com. 291, 




Bboum, &c. At, 

' fi^9^1 






Broom, Ac. *c. 


^^4^<il or not ? Ami 1 shall encleavonr 
to determine l,y a particular examinatron o ' 
each of the phniiur, objections to it, in ll^e 
order in which they are stated by him pre! 

must ^. ... J ^^°^^ objections 

mist, ...y opinion, depend upon substan* 
t«al argumentH drawn from reason and sou "d 

mere form, which were never applicable to 
the circumstances of this country, and have 

In considering the first objection to the 
commission, viz., that it does not ruS n the 

tfe"T'' * fl;'" '^^^ ^' for granted tiat 
lie Hing b ing the supreme magistrate anH 

entrusted with the MrhdeexecuT Tpo^'erof 
the law, no Court whatsoever can havj anv 
junsdiction, unless it in some way or a' er 
derive it from the Crown, (c) The ownera 
of some counties palatine iii certain!? al 
one time, possess in those counties " r^l 

King hath w his paiace. They appointed 
ali judges a- f justic. s of the peace ; an3 all 
wr,t« and muictments ran in their nameT ar 
in other counties in the King's C^. hT^ama 
-f;hose powers were nlridfed, i'nS o?hfrs 
entirely take. O-om them, bf the 2^ ^T 
VJII. c. 24; and 1 conceive that e nif 
they had coi. mu».d to be inwsted u^/h 
them up' the .resent hour/^olrL^^'^ 

thTson' '' ^ from then e in scp^po^Hf 
this com' ssiuii; because there h no real 
resemblance between that ' mp^iZ^^l 
rmpen^^ which they enjoyed, an/ Se Xe 
ot a Governor.-fn his work on Gov^! 

p. %^ «-''• P- C. p. 2.-Wood'. I„.,. Book. IV., 

(d\ 1 Riaoir r«»» ii>* 


Bliall endeavonr 
examination of 
ons to it, in the 
<i by him ; pre- 
hose objections 
upon 8ubstan« 
ason and sound 
1 to matters of 
' applicable to 
ntry, and have 
sed to be so ia 

lyection to the 
not run in the 
r granted, that 
agistrate, and 
ui: a power of 
can have any 
way or "ler 

The owners 
certainly, at 
aties. *• rega^ 

fully as the 
■y appointed 
:ace; and all 
iiruamcb, as 
d)\ bu'some 

and others 
3 2^th ^ien. 
that even if 
vested with 
n support of 
re IK no real 

rsrium sub 
the office 
on Govern 1 



L Book. IV., 



ment (e), Nathaniel Bacon observes, that in in9i 

those parts oflus dominions in which theKing w!!!Lv 
hv^ri r P^'''«"'?"y P'-esent, he must rule jSi^^' 

by rejieclion, as the moon in the nidif and » "• 
be adds that the person who discharges h^ ®'*^°»'* *"' ^ 
clnties for Inn in his absence. I,y whatever 
U lehe may be distinguished. ,s - conservienr 
wi h him. But without entering upon a mi- 
nute inquiry into the nature of the iffice of a 

that he bears a very different character from 
that of a mere agent, whose acts must be 
done in the name of his principal ; (f) for he 

Cpi y* T '"?''' ''^"^ P'-oclamations ; con- 
vene the legislature, when the colony has 
one; grant some commissions ; and give a„ 
asaeuuo laws, in his om;« „«,«;. Still how" 
ever, I am prepared to maintain the gene al 
' . :P?*''T'/*'^i ^^^ ^«"'-l« «f '^>v through- 

Jhontv ,lp''"'^'r"'-',""^^'^^'«" ^»d au- 
IWm ^ "if. "»'«^'''«'^/i^ or mec'atelu, from 
him ; and that, consequently, this commit 
^K,n IS an absolute nulfity if it atLr^l to 
confer judicial powers upon the defSn s 

fe? Ten In !u^ '"'P^'-f^"* Point. let us re- 
ler, then, to the commihson itself: which 
after reciting a power granted to the On 

lettei-s patent, to constitute and appoint m 
^ses requisite, comraissinns of Oy° and 
Termmer; and certain instructions ^f, Hi2 
Majesty relative to the manner of carrvine 
Jh^ power mto effect, r roeed to an 2 
he defendants comn Isb aers % v^ue^ 

^emor. It does, therefore, appear to we to 

. ior; -, p. 70, 

W Paley'i Prio. and 

Agent, 221, 








Broom, dic, &o. 


bo perfectly dear upon the face of this in- 
strument, that the comniiHjKioners did derive 
their powers from the Kimf thron^h the me- 
dium of the Governor, who was empowered 
and directed by the King to appoint them ; 
and though I do wish that, in compli- 
ance with long established forms, it had nm 
in the King's name, yet 1 cannot venture to 
pronounce it illegal upon what J deem to be 
nothing more than an inaccuracy in a mere 
matter of form. 

The second objection, viz ;— That the 
commission does not direct the commission- 
ers to inquire by the oaths of good and law- 
ful men.ihas always been considered by me 
as one of the most serious of the whole list ; 
and I have even entertained great doubt 
whether this omission did not entirely viti- 
ate it. If anything in a commission is msxt- 
teroi substance, I should say, that the direc- 
tion tu the Commissioners to proceed by a 
jiirt/ is most peculiarly so ; and if my deci- 
sion on this point were to be formed by my 
own estimate of the importance of it, with- 
out reference to precedent and authorities, 
I should almost conclude, that this omission 
conhl not be supplied by any implication or 
intendment whatever. But it is a remarka- 
ble fact, that the Commission of gaol deliveri/^ 
now used in England, which confers as high 
jtidicial powers upon the Commissioners as 
the Commission of Ot/er and 7\rminer, does 
not contain, from the beginning to the end, 
a single allusio: ^,o a jury ; and I think that 
if this omission can be aided by intendment 
in one case it may be equally so in anoilier. 
Now, Serjeant Hawkins, {g) in his chapter 
upon justices of ,aol-delivery, observes, 
«• that it is said in some books, that they 

«« hnvp nni. iis such. Dower to take any in- 
„ — „_.. ... 

(,j) 2 ll«*k. I*. C. i>. 24. 



; roiTRT, 

ace of this in- 
iiei'H (lid derive 
.lirouj;lj the rae- 
ifas empowered 
appoint them ; 
It, in compli- 
rms, it had rim 
inot venture to 
It 1 deem to be 
racy in a mere 

iz;— That the 
lie commission- 
good and law- 
jsidered by me 
the whole list ; 
id great doubt 
t entirely viti- 
nission is mat- 
that the direc- 

proceed by a 
ind if my deci- 
formed by my 
ce of it, with- 
md authorities, 
at this omission 
implication or 
t is a remarka- 
oi gaol delivety 
confers as high 
nmissioners as. 
7'erminer, does 
ng to the end, 
id i think that 
by intendment 

so in anoUier. 
I in his chapter 
ery, observes, 
oks, that they 

take any in- 



•*dictm€nt; but the common opinion that 
*• they have .such power, seems much more 
*• a^ireeahle to reason ; for surely it cannot 
*• hut be implied iu their Commission to do- 
•* liver prisons of their prisoners, that they 
" must have authority to make snchdelivcr- 
** ance hy due course of late, which cannot 
** be without a proclamation if there be no 
" prosecution, or a proper trial if there bo 
" one;" and upon reason etpially forcible it 
nii'y be saiil, in the present case, that when 
these Commissioners are empowered to hear 
and determine felonies, &c., accord im^ to 
law and justice, it must, surely, be implied, 
that they are to do so by due course of law— 
«. c, by the oaths of good and lawful men of 
[he island. Jf, then, the direction to inquire 
by the oaths of good and lawful men of the 
island is necessarily and obviously imflied in 
the Commission, 1 do not conceive that it is 
material in what manner this direction is 

The third objection is, that no day, nor 
place, i8 set forlh when, or where, the Com- 
mission IS to be held ; and, certainlv, if the 
directions npon these points had been />«/•//. 
cnlar in the Commissions used in England, 
It might have been necessary to inquire up- 
on what principle the statement of a parti- 
cular time and place had been inserted in 
order to ascertain whether it should be con- 
sidered ds a substaultal, or only ^s a mere 
fornial, part of the Commission. But m 
point of fact, the Commission of Oyer and 
JermineruseA in the English circuits, only 
commands the Commissioners, at certain 
<lays and places which they shall appoint for 
the purpose, to make diligent inquiry; and 
sure y « power to appoint a day and place 
lor tin iioldinp- of tho r?rt«,»v,;«,..'„_ .• ■ 

sanly included m the authority which it cou- 




Bboom, <Scc. <Set, 




t » 




fefs to inquire of, hearj and determine ofTcti- 

ces ; so that the variance in this respect is 

DAwb most decidedly nothing more than a formal 

V- one ; the two Commissions communicating 

Broom, &c. &c. precisely the same powers to the Commis"* 

sioners by different forms of expression, 

The reason which renders it essential to 
the validity of a Commission in England, 
that it should contain a particular specifica* 
tionofthe local limits of the jurisdiction of 
the Court, may be easily assigned. From 
the days of Alfred the Great, the territory 
of England has been divided into counties; 
and the law has ever since been, that all 
offences* committed within any of those 
counties should be tried in them by a jury 
coming from them ; and that the sentence 
upon offenders should be carried into exc" 
cution by the Sheriff* appointed for them* 
In other words, a jury of one county could 
not possibly try an offence committed in 
another county ; not* could the sentence 
upon the offender be carried into execution 
by ?ny other Sheriff" than the one of the 
county in which the ofl*ence was committed : 
and hence it became absolutely necessary 
that the local limits pi the jurisdiction of 
every Court should be clearly stated and 
defined in the Commission by which it was 
erected ; the county of Kent being, in legal 
consideration, as separate and distinct from 
the adjoining county of Surrey, as if they 
were situated in different quarters of the 
globe, and under the government of difi'er- 
ent Kings. But in this island no such divi^ 
sion of counties obtains; (A) and an offence 
committed at one extremity of it, might ac- 
cordingly be tried in the centre o*" it, by a 

(A) Since (bis judgment was delirered, the island bai 
been di? ided into three distioct districts, agreeably to the 
0th Qr IV., c. 07, §.7, 




etcrininc offcit- 
i this respect is 
I than a formal 
the Commissi 
it essential to 
>ii in England^ 
cular specifica- 
: jurisdiction of 
signed. From 
It, the territory 
into counties ; 
been, that all 
any of those 
hem by a jury 
, the sentence 
ried into exe- 
nted for them* 
} county could 
committed in 
I the sentence 
into execution 
the one of the 
i^as committed : 
tely necessary 
jurisdiction of 
irly stated and 
»y which it was 
being, in legal 
d distinct from 
rey, as if they 
quarters of the 
nent of differ- 
1 no such divio 
nd an offence 
of it, might ac- 
mtre c*^ it, by a 

red, the island bat 
Its, agreeably to the 



jury coming from the other extremity^ ; and 1023 

the powers of the High Sherift" extend y r . ',_ ' 
through every part of it. Hie jurisdiction Dawb 

of a Court constituted under a Commission v. 

from the Governor of Newfoundland being ^«oom, &c. &•. 
therefore, as I apprehend, confined, by a 
reasonable and necessary intendment, to 
this island and its dependencies, I cannot 
discover, in reason and in principle, any ne- 
cessity for a more particular designation of 
its limits than what may be fairly inferred 
from this commission. 

If that close analogy exists between a 
magisterial warrant and a judicial Commis- 
sion which the defendants contend for, then 
must this Commission most unquestionably 
be bad ; for a warrant to arrest all persons 
who may have been guilty of any criminal 
conduct would be so defective, that it could 
not afford any justification to the officer 
acting under it. But though it would obvi- 
ously be illegal and absurd to leave it to a 
constable^ or other executive officer, to de- 
termine what act would amount to criminal 
conduct^ I cannot perceive tliere is anything 
of the same sort of impropriety in empower- 
ing judges to hear and determine all ••cri- 
minal causes," without a particular enume- 
ration of them ; because it must be supposed 
that they have sufficient knowledge of the 
law to ascertam whac acts it regards as cri- 
minaL And it is to be observed, that it is 
even left to the justices of Oyer and Termi- 
ner in England to determine the extent of 
their criminal jurisdiction from their know- 
ledge of the law; for their commission, after 
enumerating avast nQml^r of offences, goes 
on to authorize them to hear and determine • 

*' all other evil doings, offences, and injuries 
whatsoever;" ihereby leaving it to them to 
decide what actions the law deems evil do- 






Broom, Ac. &c. 



ings, ofTences, and injuries. Nor is the ex- 
pression "all criminal causes" more vai^ue 
and indeterminate than the expression ""all 
cdmes and misdemeanors," by which tiie 
criminal jurisdiction of the Supreme Court 
is granted and defined by the 4S>th oi'hb 
late Majesty. J. am, therefore, of opinion, 
that there is nothing solid and substantial in 
the plainiiiT's fifth objection to the Com- 

The next objection is, that none of the 
Commissioners were selected for a Quorum ' 
and it may be proper to notice here, that 
this IS the onty circumstance in which the 
present Commission diflfers from the one un* 
der which Mr, Reeves sat ; which was al- 
most a literal copy of all the Commissions of 
Oyer and Terminer which have been issued 
m this island since 1750. It is, therefore, 
highly important to ascertain the materiality 
of this exception; because it clearly follows, 
that if the Commission cannot be pronoun- 
ced to be vicious upon this particular grovnd, 
it must share the same fate with all the rest, 
and cither stand or fall with them. Wow 
the Commission of the peace confers two 
distinct characters, or offices, upon the per- 
sons named in it; the one being that of a 
mere conservator ofthepeacei and the other 
that of djud^e, invested with a large share of 
criminal jurisdiction. Hence it is apparent, 
that very different degrees of qualification, 
with respect to learning, are required in the 
two offices ; and it is probable that in the 
reign of Edward the Third, wiiich is the 
era from which we are to date the appoint- 
ment of a justice of the peace, many men 
would be found capable of discharging the 
duties of conservator, who were totally unfit 
to preside in a Court of /#?«», When '^ -■-'•. 
fore, persons of two distinct classes were to 


Nor is the cx- 
s" more vaque 
xpression "all 
by v.'liich llie 
Supreme Court 
the 4i>th of \w: 
ore, of opinion, 
d :,ubstantial in 
n to the Com« 

at none of the 
for a Quorum ; 
)tice here, that 
i in which the 
'om the one un* 
which was al- 
Z!omn)is8ions of 
ive been issued 
tt is, therefore, 
the materiality 
clearly follows, 
ot be pronoun- 
'ticitlar grovndf 
ith all the rest, 
h them. Now 
e confers two 
i, upon the per- 
being that of a 
t and the other 
a large share of 
) it is apparent, 
f qualification, 
required in the 
ible that in the 
, which is the 
B the appoint- 
e, many men 
ischarging the 
re totally unfit 

;lasses were to 


be united in the same Commission, it was 
inost wise and necessary thatja regard should 
Oe had m it to this diflTerence of qualific,!- 
tion ; and that the powers conferred by it 
s ioul<| be in proportion to the abilities of 
the party to whom they were entrusted. 
1 he cause for this distinction ceased, how- 
ever, with the advancement of learnin'r- and 
the quorum clause is accordingly de'ciared 
J*y Blackstone, (/) Burn, (k) and other wri- 
ters, to have long since become a matter of 
mere Mm This remark, it is true, is con. 
nned to the commission of the peace. But 
we may also measure the importance of the 
quorum clause in other Commissions, by 
considering what is the real use of it. Co/, 
cejving then, that no reason can be drawn 
either from their education, professional ha- 
bits, or rank m society, why greater powers 
should be given to the>,* than to the last 
ot the gentlemen named in this Commission 
J can discover no other motive th^n a re-' 
spect for ancientybm*, whicli has, pprhaps 

too tar (/) lor Mie insertioa of a Q«w:um 
clause in It. stv-v***"* 

The objection, that a father and son are 
joined in the Commission is entirely new to 
me; and is certainly made by the authoritv 
to which the plaintiff has referred iuZmZ 
of it. to rest upon a very sandy foundaUon. 
He cites a book er.titled - a compendi«rnf 
Jaws relating to jurors," p. 3.15, where^^s 
said, that it m a good cause of challenge, to 
(t) 1 BIftek. Cam. p. aril. ! ; 

thitlhl 5" r '" ^""'*''' ^^^- '* »» *^«n »«a«*^ by Burn 
1; *^;f,^-?''-''«^'°» '« or4««ually made of late ylmfZi 

(0 For example : enchsntmenti, sorraries and ftri« 









one o{ the grand jury in the attaint, that he 
is related to one of the petit jury ; antl, with- 
out adverting to the circumstance, that the 

I-. t 

Beoom,*&c. &c. grand jury are to try the petit jury upon the 
serious charge of having given a false ver- 
dict, he proceeds to argue upon an analogy 
between the offices of judge and juror ; and 
insists, that if it be a ground of chalienge to 
a juror that he is related to another ; iror, 
so also it must be a good exception to a 
judge that he is related to a fellow judge. — 
Had he reflected for a moment, that the 
grand juror in the attaint, and the petit ju- 
ror, stand in the relation to each other of 
juror and party accused, and not in that of 
felloiv judges, he must at once have seen 
that the authority hequotesis wholly foreign 
to the case to which he attempted to apply 
it. No exception can be taken to a juror 
on the ground that he is related to another 
of the same jury ; and, therefore, if judges 
and justices were even liable to the same 
challenges as jurors (v^hich, however,they are 
not), (m) it would still be no objection to a 
Commission that two of the persons named 
in it are related to each other. 

Another objection, and one of a much 
more serious character than the last, is, that 
the Commissioners are to hear and determine 
according to law and justice, without being 
specially directed to do so according to the 
laws and customs of England. In his com- 
mentary upon Magna Charta(«) Lord CoAe 
eays, that *• upon the words per legem terra: 
"all Commissions are grounded, wherein is 
** this cX'dxise, facturi quod adjustitiam perti- 
net secundum legem et consuetudinem Anglice, 
And it is not said legem et consuetudinem 



fm) Co. lilt. S04. 
(m) 2 last, 60. ' 







ttaint, that he 
try; anil, with- 
mce, that the 
juty upon the 
en a false ver- 
on an analogy 
ind juror ; and 
)f challenge to 
another j !ror, 
xception to a 
jIIow judge. — 
lent, that the 
id the petit ju- 
each other of 
lot in that of 
nee have seen 
wholly foreign 
pted to apply 
iken to a juror 
ed to another 
fore, if judges 
le to the same 
wever.thev are 
Dbjection to a 
lersons named 

le of a much 
le last, is, that 
and determine 
without being 
cording to the 
In his com- 
(«) liOrd Coke 
er legem, terra; 
ed, wherein is 
ustitiam pertU 


** Regis Anglifc, lest it might be thought to 
"bind the King only; nor populi AngUee, 
*' lest it might be thought to bind them on. 
** ly ; but that the law might extend to all, 
" it is said per legem ierne, i. e. Anglia>. 
*' And aptly it is said in this Act, per le<rem 
"terns, that is, by the law of England ° {or 
'• in those places where the law of England 
•'runneth not, other laws are allowed in 
*' many cases, and not prohibited by this 
"Act. For example: if any injury, robbery, 
'• felony, or other offence, be don*e upon the 
" higk sea, lex terrcB extendeth not to it, and 
"therefore the Admiral hath conusance 
"thereof, and may proceed, according to 
"the marine law, by imprisonment oVthe 
"body, and other proceedings, as have been 
" allowed by the laws of the realm." Here, 
then, is certainly a very strong authority to* 
prove that the word "/«?«;" is not sufficient- 
ly determinate in its meaning to be used in 
Commissions, without having the words "o/ 
England" subjoined to it; and, 1 confess, I 
have very much doubted whether the omis- 
sion of them did not vitiate this Commission. 
But, admitting that the expression ''laivand 
justice" might originally have been open to 
the exception of not pointing to the laiv and 
custo^ns of England" so distinctly as they 
ought to do, J think they are capable of ac- 
quiring the nec^issary certainty in this re- 
spect by a Ion > lotn'se of judicial construe^ 
tson and mterpi -tatiun of them; since it 
would be ihelurj/^flen dutyof the Jus-ticesof 
the present day to adhere rigidly to that 
constructio 1 and interpretation which had 
been unifortniy given them by former Justin 
ces. if their meaning was clearly andmani- 
Jcsthj an improper one, I allow that no length 
of time could heal such a defect in the Com „ 
mission, agreeably to the maxim, «• quod ah 
tmtto non valet, tractu temporis non conva-, 





Broom, Aic. &c. 





Bkoom, &c. &c 


Icscet ; " but an expressidn which might on- 
(rinally have been open to the exception iA 
being rather too loose and indeternwiale, mnVi 
J apprehend, be thoroughly purged of this 
/'ault by a conslrnction of it invariably fol- 
lowed for a considerable number of years. 
Finding, therefore, that all the Commission- 
ers of Oyer and Terminer who have been 
appointed in this island since 1741), have, by 
the course of their proceedings, determined 
that the expression '* law and justice" is, in 
is legal operation and effect upon a Commis- 
sion issued in Newfoundland, equivalent to 
" t/te law and customs of Midland" 1 con- 
clude, though with some diliidence in my 
opinion, that it is now too late to object to 
the use of it. 

The last pentcnce in the Commission is, 
•• And that you do make your report to me 
"of all such proceedings had and done in 
"the causes which shall be brought before 
" you, or amj of you, nominated, authorized, 
"or appointed, as aforesaid;" upon which 
the plaintiff has attempted to found an ob- 
jection, that it gives powers to any of the 
Commissioners to perform acts which, by 
previous clauses, could only be executed by 
Jiveoiihem, But, in the 'first place, this 
sentence is not repugnant to the other clau- 
ses; because it does not expressly authorize 
the Commissioners to do anything except 
making a report of their proceedings to the 
Governor; and, secondly, the context re- 
quires that the words ''any of you" should 
be inseparably united to the words " nomi. 
nated, authorized, or appointed, as afore- 
said; and thus it is evident, that any of the 
Commissioners could only act in the manner 
in which they had been previously " autho- 
r*^*^ " to <^o. This appears to nie, then, to 
ue au excepiioa to the Couiniission scarcely 
dr?.i»r..m«. the. notice I have taken of it. 



'liich might on- 
\e exception of" 
Herminate, mayj 

purged of this 

; invariably fol- 

umher of years. 

le Commission- 

who have been 

174y, have, by 
iss, determined 
d justice " is, in 
pon a Commis- 
, equivalent to 
igland," 1 con- 
iidence in my 
te to object to 

Commission is, 
ur report to me 
id and done in 
brought before 
id, authorized, 
" upon which 
found an ob- 
3 to any of the 
cts which, by 
•e executed by 
%st place, this 
he other clau- 
issly authorize 
y thing except 
feedings to the 
e context re - 
fyou" should 
i'ords ** norai^ 
ed, as afore- 
hat any of the 
in the manner 
usly " autho- 
me, then, to 
ssiou scarcely 
en of it. 


The 10th objection may, 1 think, be very 
properly coupled to the 2d, and receive the 
same answer which has already been given 
10 It. Jn the omission to direct the Com- 
missioners to inquire by the oaihs of good 
and lawful men ; and to notify them that, 
lor this purpose, the Sheriff had been com- 
manded to cause to come before them such 
good and lawful men, this Commission re- 
sembles the Commission of gaol delivery still 
used m England; and if these omissions 
inay be supplied in that case by reasonable 
implication and intendment, I repeat that J 
do not see why they may not also in the 

Upon the next objection I shall only ob- 

IfnnV'^iV^ ""^^ "S'^' ^^'^t this Commis- 
sion should be tested by the Governor. 1 
conceive that it has been done so by he 
^ords - m witness whereof," &c. in a man- 
ner which excludes all cavil upon this point 
Since (o) there undoubtedly is no public seal 
foi this island, It seems a good answer to 
the objection that this Commission is not 

Otlta. This objection, indeed, if it iould 
illln ^^".'d. prove, not only that the pre.. 
Hent Commission is bad, but also that no 
good one could possibly have been issued • 
a proposition which, J imagine, hardly am 
person wil be found to maintain who i^ 
aware, that an authority to issue such a 
Commission has been solemnly committed 
Great S^J'Tv^ His Majesty, under the 
ment nf !k' ""^ ,^"§^«"^- That an instru- 
nowL !f If °^'y'f' ^?»^e"ing as it does the 
power of life and death, should be executed 
with the highest possible solemnity; and 

(0) Somo years after Ihi'a judemenf was d«li.,»,.,! . 
i.-.:.i:c seal loi rvewfoundland was forwarded lo the f;./ 
v«r«or, by the Secretary of Stale for .h« Colonies. 



Dboom, &0. &0. 






Broom, &o. &e> 


that, consequently, where there are seveml 
seals (as is the case in England) (p) the one 
of greatest weight and importance shonki 
be aflSxed to it, I freely admit: but at the 
same time 1 contend, that this principle has 
been followed upon the present occasion by 
affixing to the Commission the Governor's 

J private seal, which, in the absence ofapub- 
ic one, must be accounted and esteemed of 
the greatest weight and importance of any 
seal in the island. In support of this, his 
last objection, the plaintiflf has referred to 
that passage of the second institute {q) 
where Lord Coke says, that " Commissions 
'* of new inquiries, and of new invention, 
*• have been condemned by authority of 
«' Parliament, and by the common law ;" 
and has argued from thence, that this Com- 
mission must be illegal, because it is, as he 
insists, one of "new invention." But if he 
had adverted, for an instant, to the circum- 
stance which gave rise to this observation 
respecting Commissions of *• new invention,"^ 
he must have perceived th«t the Commis- 
sions of **«€W invention" to which it is alone 
applicable, are Commissions authorizing an 
inquiry into Acts not previously deeined or imi- 
nal by the law, or directing the trial of such 
as were by new and unusual methods ; and of 
the illegality of such Commissions there 
connot be the shadow of a doubt. So far, 
however, is i^ord Coke from asserting, that 
no alteration can be made in the form of a 
commissson, that after telling us, (r) that 
•* Sir Christopher Wrny, the chief justice of 
*' the King's Bench, had, with the assistance 
and advice of the other judges, made di- 
' vers additions and alterations in the com- 

(p) 2 Tnit. 554. 
fq) l\ 478. 
(r)4 ln»l, 171.- 


a^«^«iiJ«i#*'*««if:;fesvt,a* % *' 


jere are seveml 
id)(/>) the one 
rtaoce ehonld 
nit : but at the 
8 principle has 
nt occasion by 
the Governors 
sence of aj^Mft- 
id esteemed of 
ortance of any 
jrt of this, his 
as referred to 
1 institute (q) 
'♦ Commissions 
new invention, 
f authority of 
iommon law ;" 
that this Com- 
kUse it is, as he 
m." But if he 

to the circum- 
^his observation 
new invention," 
it the Commis- 
vhich it is alone 
I authorizing an 
ly deemed crimi- 
Lhe trial of such 
nethods ; and of 
imissions there 
doubt. So far, 
1 asserting, that 

the form of a 
ig us, (r) that 
chief justice of 
h the assistance 
Iges, made di- 
)ns in the com* 





'^I^i;;?'Wi''rT,?^"^'*'" «m//.r and 
r P ' / 1/' ^•^•:^'*'"P «d^«. " and yet 
theio needeth another reformation ofitrU) 

1 10 ity o tins greai „«„ ^-^^ all such dlera^ 
hn r ',?;''f Commissions now ««ed in Kng- 
and, ' both lu mailer and methodr as may 
tlLr^f.?'"^''' •'^''^P' ^"^ accommodate 
tl'rcolLyr "'-^"'"^^-^^^^ --^ condition of 

ihl nf? ^r^."""^ ^.'''''"Sli the whole list of 

vitho ./h •' ^^J'^^^'"?^ t«thi« Commission 
wi hout having been able to discover eithe^ 
m them, or m some others which have su-. 
gested themselves in the course of ihisJa- 
vest.gat.on, sufl cient grounds to justify me 

n pronouncing it to be illegal, li many of 

.em there never was. as J conceive. a„y. 

lung substantial; and those defects which 

have iT'f "1 "'^''^ '''"""« ^h^" ^^^ ••e«t 

ion V i^ t' ^T ""'1^ ^>' "-^^ ^^"«truc: 
lion which has. for a long period bepn 

-uniformly given to expres^ioL orlgina, ^ 
less clear and determinate than they onc^ht 
to have been, li ,his Commission was no- 
SI .vely contrary to law and reason-as if ^t 
tTe'cor-'"' -^^o#..c... orempowei^d 
the Commissioners to inquire into oW one" 
by 9iew and arbitrary methods-it certaLTv 
could not derive the"" slightest saldon S 
support from the length tf time during whic 
has been muse; because, in such cases 

tiomsestconsiderandarit) and one mirht 
^ven apply to a Commission which was fia- 
}>'°fiJ^r of those objections, thedeclara 

tion of Mr, Justice Yates, in the memoraWe* 

. of Jame, the fLj *^ "** «tougbt Mce.8arjr ia Ibo reif q 
(t) Co. Lilt. 141, a. ,. , ' •;^.> ; ,; ;, 

3m ' '"'^*^' ayaiMcj 

Da WE. 


BnooM, &c. «!tc. 



li •' 













B&QOM, &.C, Sec. 


cas€ of the warrant for seizing papers, *' ihat 
-" I he vse of it from thefoiindalion of aucicnl 
" Rome would not render it legal.'" («) But if 
the detcmhints, whilst sitting under it, must 
have felt themselves bound, by the terms of 
it, to conduct their proceedings according to 
the law end customs ef England (as it is 
evident to me they must), 1 cannot admit 
that a departure — in some instances neccb- 
sary and unavoidable — ^from \\\q form of ;in 
English Commission, can vitiate it. This 
is the opinion i expressed before 1 had ex* 
nrained it with the attention ] have since 
done, it is the opinion which Mr. Reeres 
mast certainly have entertained of it ; and 
it is, also, I strongly suspect, th'^(w) early 
opinion of Mr. Forbes npon it. 1 should, 
therefore, 1 confess, have felt more than or- 
dinary confidence in it, if it had not been 
officially communicated to me by his Ex- 
cellency the Governor, that some of the law 
officers of the Crown have reported to the 
principal Secretary of State for the Home De- 
partment, that they consider it invalid. With 
a knowledge of this fact, 1 naturally cherish 
doubts which would not otherwise have as- 
sailed me. But, however profound my respect 
and deference for the talents and learning of 
those gentlemen may be, I cannot guide ray 
judgment by their opinion, unless 1 had been 
made acquainted with the reasons upon 
which it is grounded, and been fully satis- 
fied by them that the opinion is correct. 1 
humbly conceive, too, it is possible they may 
be induced to ac(}uiesce in the view 1 have 
taken on this subject— 
First. Because it does not necessarily 

(v) 2 Will. 275.-11 H«r. State Triali, 31». 

(to) Wliether or aot Mr. Forbes has obanged that opU 

IkOD, ! caODui ptslsau iO sbj I uHl s. aafs stiOiig scaSOS 

to biliaTO that h« must bare once ealertained it, '^ 

I cox RT, 

g papers, ^' that 
lalion of ancicnl 
j^aV h) But if 
'^ under it, must 
by the terms of 
ngs according to 
h^land (as it is 
f cann'^t admit 
nstances neccfc- 
the form of n'\ 
initiate it. This 
lefore I had ex* 
»n 1 have since 
hich Mr. Reeves 
ned of it ; and 
ict, th^ (w) early 
1 it. 1 should, 
It more than or- 
i it had not been 
me by his Ex- 
some of the law 
I reported to the 
orthe Home De- 
it invalid. With 
naturally cherish 
herwise have as- 
found my respect 
J and learning of 
cannot guide ray 
nless 1 had been 
e reasons upon 
>een fully satis- 
m is correct. 1 
ossible they may 
the view 1 have 

not necessarily 

Tridi, 319. 

las ohanged (hat opU 

T l._ . 

entertftiDed it. 


Mlow from thtir havinj; reromracndtd that 
a 1 ardon should bo granlttd to the persons 
sentenced under it, that they deem it to all 
intents mul purpo es invalid an<l ill -al.- 
Agreeably *,> the rule, which has ays 
prevaded in i^lngland, of giving to i aers 
the full benefit of all nice «\ccptioiid and 
Jechnical olyections which can be raised to 
the mdictment, or other parts of the proceed- 
. mgs, under which they have been convicted, 
they might have thought it necessary to give 
to the persons sentenced under this Commis- 
sion the benefit of these fonnal objections 
withoirt thinking that the Commission itself 
was rendered by them so radically vicious 
and positively illegal, that no Court could 
be constituted under it. That the distinc- 
tion 1 here take as to the degree, or extent, 
to which a Commission may be invalid is 
not merely a fanciful one, 1 think the £oU 
lowing case will show.^ In his iPourth Insti- 
tute (a?) Lord Coke tells us, that " to Coni- 
*' missioners of Oyer and Terminer a writ of 
** supersedeas was delivered,^Mia; enormis 
'ytmnsgres^io nan est, for it was only for 
*• cutting, dotvn <rm."--Now, supi3ose that 
before the issuing of the supeisedeas, a man 
bad been tried under the Commission for 
tuiting down trees, and sentenced to impri 
sonment ; I apprehend that he was clearly 
entitled to his f/«sc/iar§-e, but that he could 
not have maintained an action off ahe impri- 
sonmenl against the Commissioners ; and yet 
the objection to the Commission in that case 
was stronger than in the present, inasmuch 
as there the Commission was MMrfa/^£-ra«/c// 
and here it is, at most, only defective ik 

2d. Because it seems to toe noc very im- 
i.._ .,„^ ii,t»i, vTiicu lucsu law Officers 
(*•) P. loa. 





BnooM, d'c. 8ns, 










■ 18 

■ 40 

125 ngu 



■ 1.8 




- 6' 



^at 16S3 East Main Street 
JSSS -^ Rochester, NY 14609 USA 
„^S-^ Phone: 716/482-0300 
•f=r.S8S Fax: 716/288-5989 

e t»93. Apptad Image. Inc.. AH Rightt RtMrvtd 



^^^ <X 










Sroom, &e. &o. 

of the Crown shall have learnt, that this in* 
strument has been, as it were, **velustate 
temporis roboratum;" and shall also have 
been made acquainted with the situntion in 
which this country long was, and, I may 
add, siiil is, with respect to its Courts, they 
may become much less inclined to insist 
upon a rigid adherence to English formula) 
in our criminal proceedings than 1 imagine 
they were when their opinion upon this 
Commission was formed. Treating of onr 
American Colonies, Sir WiUiam Blackstone 
observes, (v) that " such colonies carry with 
*' them onTy so much of the English law as 
*' is applicable to their own situation, and 
" the condition of an infant colony ; such, 
*' for instance, as the general rules of inhe- 
"ritance, and of protection from personal 
"injuries. The artificial refinements and 
** distinctions incident to the property of a 
** great and commercial people, the laws of 
"police and revenue, the mode of mainte- 
"^nance for the established clergy, the juris* 
"diction of spiritual courts, and a multitude 
" of other provisions, are neither necessary 
" nor convenient for them, and therefore are 
" not in force" And in a work upon the 
European Settlements in America, which is 
written with so much ability as to have been 
ascribed to the early pen of the illustrious 
Mr. Burke, it is said, {z) " the law in all our 
" provinces is the Common Law of England, 
" the old statute law, and a great part of the 
" new, which I find many of or.r settlements 
"have adopted with very little choice or 
"discretion. And, indeed, the laws of 
England, if in the long period of their du- 
ration they have had many improvements, 
" so they have grown more tedious, perplex- 




^; J vu.... p. 

(») Vol. a. p. ao3, 




)t, that this in«> 
»re, **vetusMe 
hall also have 
the silnntion in 
IS, and, 1 may 
ts Courts, they 
:linecl to insist 
ngiisli formula} 
than 1 imagine 
ion upon this 
freating of onr 
iam Blackstone 
nies carry with 
English law as 
L situation, and 
colony; such, 
\ rules of inhe- 
from personal 
ejinements anil 

f>roperty of a 
e, the laws of 
lode of mainte- 
lergy, the juris* 
ind a multitude 
tlier necessary 
id therefore are 
nrork upon the 
erica, which is 
IS to have been 
f the illustrious 
e law in all our 
aw of England, 
;reat part of the 
[)i:r settlements 
little choice or 
, the laws of 
od of their dii« 
dious, perplex- 




;;ed, and intricate, by the heaping up many 
rtnove them m another. These n fan t 

«. I ; ' I . ' ^"" i'eterminatc legislation B«oom, *c. *«, 
^^ though , were of somewhat an home li"; 

l^ind : laws suited to the time to thHr 

n?l"/ '■^' °»d the nature of their new wVv 
"hwnfr^r^'''r^ «till subsist nh^ 

law ot England which are built mwn cul 
-ses and reasons that have long a^Tea'cd' 

'• SJ^n '"« i? ''•'^^^ '^^^« '^"'tabTelo 
^/i^W onitf." But if many of the law^ 

of England be thus unsuitable to thelZ'/ 
condmon of a colony (and. with referenctto 
her jurisprudence and iuridicil ^^tnAU i 
m. .as. Newfoundland sti I is „ n L^tP nf fi '" 

that slnctness of form observed in all cfmi 
nal proceed.ngs in England, which cSu.^ 
mn. ^-'^jellent man,Sir^/a///;.i^/i«^'^';^'^^.^ 

" e^an ' r .i '^."^^ "»«- offenders 

• over in force in'a sode y !'he e tvo"cor 
missioners could not, nrobablv ll« f'i 
capable of construing\h'eI?'c^^i^^^ 

ine«tofpfcJJ,71,*, "^^^^^^^ to III. depart 







BaooM, &c. &o. 


Or tliat an indictment might be cjunshed for 
not being written on piu'c/inient, in a Court 
whei'c the nse ofparclmient is, lo this hour, 
wholly unknown ? It is superHiious, howe- 
ver, to multiply examples oi'this kind; since 
every person who has attended our Court* 
must have remarked, that, even in the Su- 
preme Coiirt, the ** forma etji^urajum" is 
scarcely at all attended to ; ami that the 
Judge i& frequently obliged to deal out 
justice to a number of ignorant suitors ** se- 
cundum bonum et aquum," without regard to 
abstract rules of law. For my own part, I 
avow, tli,at before I came to this island, 1 
could hardly have been persuaded, that 
Courts of such a constitution as ours, in re- 
ference to t\ie form of their proceedings and 
practice, were to be found within the whole 
compass of the Britisli empire; and the im- 
possibility I find of assimilating our proceed- 
ings, in matters of form, to the courp' ^ prac* 
tice at home, convinces me, that : ii'd be 
most unreasonable and absurd to estimate 
their validity by their adherence to forms 
-which, with the machinery now belonging 
to our Courts, it would be utterly impracti- 
cable to introduce, or noake any use of, in 

It only remains for me to notice one im- 
portant circumstance, which has had great 
weight and influence upon my judgment in 

eontinued to be (he law of England till, ooanfitralivcly, 
within • vary few jr»at*. Agnin, Lord Coke telU us (4 
Inst. p. 1G4.) lh«t th« aullioritj of CumniissioncrB of Oyer 
and Terminer oiusl be given '■>y Commimon, and not by 
writ; and yet Sergeant Uawkuu declares, (P. C. Book 
2il, p. 15) (bat he cannot ascertain what the difference n 
btitweeu a commission and a writ. Can points, then, of 
■o fine anil subtile a nature as not lo be discernible by lii« 
must cUar-sighted Emilinh Ipwyeis, be supposed to bo 
wiihin the vi^w of tbos« who are a|ip6iiitetl lo aamtnislcr 
the Uw io such a colony as this ^ 



> qunslied for 
, ii) & Court 
to thm liour, 
]iiou», liowc- 
» kind ; since 
(cJ our Court* 
en in the 8u- 
'Mf«j«ri»" is 
iml that the 
to i\eix\ out 
. suitors ** se^ 
oat regard ta 
' own part» I 
this island, 1 
Buaded, that 
9 ours, in re- 
ceedings and 
>inthe %vho]e 
and the im> 
onr procced- 
3urP' ^prac* 
nt ? n\i\ be 
d to estimate 
3nce to forme 
►w belonging; 
;rly impracti- 
ny use of, in 

»tice one im- 
lias had great 
' judgment in 

I, ooi»p«rati?c1y, 

i Coke lella us (4 

uissioners of Oyer 

mion, and not by 

ret, (P.O. Book 

tlie differmct it 

points, then, of 

ilisceinible by liia 

•upponed lu bo 

Led to ftominisicr 



tins cnflo. In the progress of my investiga^ 

lion Of us M.omentotis question, it-occurred 

to me, that iiiMiiy of the inaccuracies uhicli 

appear ni liic Commissions of Over and 'JVr- 

mmer. must. |>rohably, also have crept into 

the Commissions of the Peace: and in looking 

into them, from the earliest period to which 1 

can trace them, I accordingly find, that they 

aie all oino.vtous to many of the same oh' 

II J«ctions that have been raised to this Com- 

* ^T";r^1*^ ^^"» »^^*'''"n^- losome^,^«/^ 

self that his Commission was void through 

same ol them ; and thus 1 should, vsovLrv 
^eclare, that there never has b^en a leVull 
mate magistracy in this island, from theSrst 
settlement of it. But this is\Z^^^^^^^ 
winch, 1 think, cannot be mairuairdTand I 
feel |>erfect y satisfied that when my Jul, 

W.Ufc8ty in Council, n will be there reviewed 
upon principles of sound rea.on ; and Tot 
examined by rules of law framed for ?h« 
most part, before the di.coverrof our co 
. lonies and m many particulars lotalk Tn^ 

that august trib^al t Shan it^turj!.? 
«.i8sive reverence ; hnt ,i„lesa I Xli t 

liolfi thi?. •''"M «™.^^«"-^' i shall alway^ 
hold that this Commission is not illegal • 

lentltliirt^rH'^^"""^^^' '^' defendSae 
reiititlecl to judgment under the soecial vpr 
Jdict which the jury have found iffi cast 

bench or the oib" or U,^i«.fSl "'^ •"""'"•• «' ">« »"• 



BaooM, &c. &c. 



December 31i/, 

Where a jiiJg- 
Bieni liad been ac> 
qiiiescvii in fur a 
tvuiiderabte Itngth 
of lime, tlie t'hicf 
Justice would nut 
Rranl a new trial in 
order tu let in new 
•Tidencd w liicli had 
Kince btteii dinco' 
vrred. And his 
Honour stated, 
that the pri^seiit 
leanioK uf his opi« 
iiioii wan, that the 
|iracticoof ({rantmit 
new trials ofter 
judgment had been 
(tivrn, oiicht to bd 
confined to judg< 
manta by default. 


In the cause between the Hrprescnintivcs o( 
tlie late William Pa RtsoNHrrn-am/ James 
ISiiEPpARD and William Danson. 

To It is Honour Richard Alex- 
ander Tucker, Es(/. Chief 
Justice of the Island of New- 
fouHiUund, 4 C' ^yc. 6fC. 

The Memorial of ,J^Jaii/ Parsons, o(lh\r]tom' 

Grace, in tiio Island of MeuTuiuid- 

land, Spinster, 


That in the month of Octohcr, 1010, the 
cause of the " Heprosentatives of WUliam 
Parsons v. James Shepjuird and William 
Danson^ tenants in possession," came on, and 
was determined, in tlie Supreme Court at 
Harbour Grace, wherein there wasjudgment 
^iven against memorialist; which judgment, 
in memorialist's opinion, was erroneous, as 
memorialist has since been informed that the 
evidence oi' James Lilly, George Lilly, Eli- 
zabeth Chancet/, and Elizabeth Lont^, all of 
St. John's, would be most material in favour 
of memorialist, as by an affidavit, herewith 
transmitted, will more fully appear. 

And memorialist further begs leave to 
state to your Hononr, that our late worthy 
Chief Justice Forbes, on the last day of his 
sitting in the Supreme Court, stated in wri- 
ting, upon the affidavit of the late Lionel 
Chancejf, which is also inclosed, that he 
"would allow a rehearsing of said cause, upon 
certain conditions therein expressed. 

That your mcmoiialist would further beg 
leave to state to your Honour, that during 
the time of the Supreme Court having been 
suspended, in consequence of the Chief Jus- 
tice being absent, she has always kept in 




rcscntntivcs o( 
against Jam '^^ 



:hard Alex- 
:r, Emj. Chief 
sluud of A't'/f- 

ns, oriJarhoiU' 

licr, 1010, the 
L'S of William 
and IVilliam 
'ciimcon, and 
enie Court at 
erroneous, as 
irmed that the 
^e Lilly ^ Eli- 
LoniTf all of 
crial lu favour 
avit, herewith 

ie^s leave to 
r late worthy 
St day of his 
itated in wri- 
te late Lionel 
>sed, that he 
d cause, upon 

i further beg 
r, that during 
having been 
Ihe Chief Jus- 
iways kept in 




Shrpparo and 

Wew and intimated to the agents of Mr. 

// illimn Danson, her inteuiion of moving the „^ 

pre ,e Court But finding that the agents 'b- 'ate Wm ' 
of|he8auJ '^*/Aa//i/>a;«o« have commenced 
bmldiug a store upon that part of the pre- 
mises m dispute, your memorialist begs 
leave to pray that your Honour will h„ 

onX« 'i"r" ^ '^^ »'"'"'''^* °^'''« documents 
onclosed, to order a re-hearing of the case ; 
and, also, that your Honour will grunt an 
injunction to defer the erection of the store 
on the disputed premises until the case is 
ti ought to issue. 

Mary Parsons. 

To which the Chief Justice gave the fuN 
lowing wntiea .iiiswer :-- 
1 have perused this memorial, and the ac- 

and '*nnr'I!?H"'""''°^'' ^*"' ereat attention, 
and not without some desire that J miijh 
find myself at liberty to comply xviti tl e 
wishes of the memorialist. But7 conceive 
that ,t IS utterly impossible for me to doTo 
In England, a new trial is sometimes, thoujrl 
rarely, granted upon the discovery of new 
and material evidence since the trial .Tidd^ 
Practice. 020); but this is always VX^ 
judgment; and when judgment has once 
been entered, a new trial cannot be granted 
here, under any circumstances whatever 
In this country, however, a practice. arS 

reviewing the grounds upon w%h i was 

^h^'cZVi^t' from the ma„n.?^u, w© 
ine f^our* is frequently compelled to exv^ 
judgment by d^ault, it is eS| to^^'^ 
attamment of substantial jugti-e C Much I 
power should, in manv inZ.rTt^.?' 
cwed by i> «••* •*♦ -- "-- v.' — ^t ■»•» ^>h;*- 

«. But it is. at t^^,^;^^^ 





llip laie Wm. 



132.1. power which ought always to be exerted wilh 

_^ii-v-M..^ great prudence and caution ; ami the pre- 

Ili|iri>iieiitatif et *>f «ent indication of my mind is, that it oiiKht 

* ' "'" to be confined, strictly, to judgments by 
itefault. Without, however, venturing to 
say that a case may not arise which would 
warrant the Judge in granting a re>hearing 
of it, I feel perfectly convinced that the 
present is not one of that <lescription. In 
October, IBIft, a judgment was pronouncetl 
in this case by the late Chief Justice, and 
quietly acquiesced in by the parties until 
iVIay, 1821. indeed, it was not until M<iy, 
1822, that any regular application was mav.e 
to the Conrt for a re-hearing of this cause. 
Mow, suppose that, in this long interval, the 
defendants, in whose favour the judgmeit 
was given, had actually sold the land for a 
good and valuable consideration, an<l ht.d 
afterwards become insolvent, so that the 
purchaser, if evicted from the premises upon 
a defect in their title, would have been with- 
out any real remedy over against them; 
could any Court have cancelled this judg- 
ment to the preju<lice of such a purchaser? 
It is 80 clear that it could not, and the ar~ 
gument to be drawn from hence against the 
opening of this judgment is, in my opinion, 
80 strong and conclusive, that I cannot help 
thinking that Mr. Forbes would not have 
promised to give this case a re-hearing, if 
time had been afforded him to reflect upon 
the nature of the application which was 
made to him during all the hurry of prepara- 
tion for his departure from this country, fiut, 
at all events, the reasons against my review- 
ing Adjudgment are more cogent than any 
considerations which could have suggested 
themselves to him; and J therefore feel my- 
self under the necessity of rejecting the 
prayer of this petition. 
Sist Decembetf IQ23» 





to be exerted wilh 
on ; uihI the pre- 
il is, tiiat it oiiglit 
to jii(l«;ments by 
?r, venturing to 
rise which would 
iting a re-hearing 
ivinced that the 
description. In 
was pronounced 
\itf Justice, and 
the parties until 
18 not until M^y, 
ication was ma>^ g 
g of this cause, 
long interval, the 
lur the judgmei t 
Id the land for a 
leration, and hi d 
3nt, so that the 
he premises upon 
I have been with- 
r against them; 
icelled this judg- 
ich a purchaser ? 
lot, and the ar- 
lence against the 
, in my opinion, 
lat I cannot help 
would not have 
B a re-hearing, if 
I to reflect upon 
tion which was 
hurry of prepara- 
iis country. But, 
ainst my review- 
cogent than any 
1 have suggested 
lerefore feel my- 
>f rejecting the 

RETTFOl' ft Dl.wnm 

Ben. Bowimno agniusl John 1L»r«isow. 

JL HIS was an action to recover the sum of 
i79 iu. lOf/., as the enlimated value of cer- 
tara articles of jewelrv shipped by the cor- 
respondent of the plaiulitt', at Liverpool, in 
the Brig //cro, of which the defendant was 
master, and consigned to the plaintiff. 

All the material facts of the case having 
been distinctly proved by witnesses on both 
sides, the Chi^' Justice said :— 

It is a clear rnle of law, that the master \b 
hound lo take all possible care of the cargo 
from the time it is placed under his charge 
until the delivery thereof to the consignee ; 
that he is liable for all injury to it arisin*^ 
from bis neglect or want of skill; and thai 
he IS, in most cases, answerable for the em- 
bezzlement of it. But the 20th Geoige 111., 
c. 86, s. 3, expressly provides,. •• that no 
♦♦ master, or owner, shall be liable for any 
*• loss or damage which may happen to any 
gold, silver, jewels, &c., shipped onboard 
!! **?^.. ^®®*?*» H"'®*" *'»« owner or shipper 
.. f -n Vf r ® **'"® of shipping, insert in his 
bill of lading, or declare in writing to the 
" master the true nature, quality, and value 
"of such gold, &c." Now. the bill of la- 
ding, in the present case, contains no such 
notice, nor has any evidence been adduced 
that such notice was given to the defendant 
agreeably to the provisions of the said Act' 
It IS clear, therefore, that the plaintiff can« 
not recover. Nor would the plaintiff have 
been entitled to jodgment even if the 26th 
Oeorge 111., c. 86, had never been passed- 
as the Court is strongly impressed with a 
conviction that the articles were not embea^ 
2!ed, whilst the cask was in the charge of tlie 
defendant. nnH wnnM ti,„-^f-__ i ^ " ." 
:*« ir 1 ■' r — •-— '.'t, is.cicioic, nave leit 

Itself bound to give judgment in his favour 


May 97/ik 

NeillMr lh« nn»- 
ler nor lh« owner 
of • veM«) ii liable 
for any Iom or da. 
<na(L« wbieb may 
silver, jtwelt, &c», 
■bippid on board 
•ucb vtfuti, unUia 
lb* o«*n«r Of %h\j^ 

t*r aball iniert ia 
ii bill of ladJDf, 
or dtclara in wri« 
liog to iba matter, 
the true nature, 
qualily, and value 
of sucb gold, aiU 
vaff &o. 




upon jliat ground. The prohabilily is, tlint 
the missing uiticics were never pul into the 

Avguii lOih 

Tht matUr tnd 
owueri uf a VMiel 
•r« retponiibli for 
• daleriortlion in 
ih« qualiiy of an 
•rtioU ahipped on 
board of auch Yea< 
■ai, ariaing ri*m iha 
•riicia in quaation 
ton naar to anothar 
arlirle, iniianalura 
calciilalad to injura 
the former. And it 
aeanti.that a know- 
ladga on iba part 
of ihr ahifpar of 
tha damaged arti- 
cle of the other 
•arpo, and of tha 
Manner of atowaga 
tiaed on board of 
lier, will not la- 
liava Iba oiaatar 
and ownara fron 
tbii liability. 

TuoMAs Beck against The Owners of the 
Uny; Kelton. 


HIS action was brought to recover a 
cumpensation for damages 8upposed to have 
been occasioned by an improper stowage of 
some bags of bread belonging to the plain- 
tiff, on board the vessel of the defendants. 

After having heard the witnesses who 
were produced by the plaintiff and defend* 
ant, the Chief Justice proaounced the fol- 
lowing judgment : — 

There is some difficulty in deciding from 
what source the injury to the bread was 
occasioned ; but, from the evidence which 
has been laid bctore nie, it seems to have 
proceeded from a gas, or vapour, produced 
by the coal. Assuming, then, that the bread 
was shipped in perfectly good order, and 
became deteriorated in the course of the 
voyage, by a vapour arising from another 
part of the cargo, the question is, whether 
or not the master and owners of the vessel 
are liable for a deterioration in the quality 
of the bread, resulting from such a cause? 
And ] am of opinion that they are liable.>~ 
It is stated as a rule, by JRoccus^ that '* if mice 
*' eat the cargo, the master must make good 
*' the loss, because he is guilty of a fault. 
*' Yet if he had cats on board his ship, he 
*' shall be excused." And it is observed by 
a most excellent writer (a) on this subject, 
that " this rule, and the exception to it, 

(e) Abbott, in hia Tr^atifa or Merehaul Ships, part 3^ 
chap. 3,;aae. S. 


m. ,ppi iilW i ii l>;iM »^^WW|||fcr.#j» ,j| j|| l p l H l >».,iL,i JIH^ . 

ility is, tlinl 
lut into the 

filers of the 

recover a 
)se(l to have 
stowage of 
> the plain- 
fend ants, 
lesses who 
ind defend* 
ed the fol- 

ciding from 
bread ivas 
lence which 
ns to have 
r, produced 
at the bread 
order, and 
urse of the 
'om another 
is, whether 
>f the yessel 
the quality 
ch a cause ? 
ire liable.-— 
Iiat "if mice 
make good 
T of a fault, 
his ship, he 
)bserv£d by 
his subject, 
ption to it. 

Ships, p»rt3| 


" although bearing somewhat of a ludicrous 
"air, furnish a good ilinstrution of the prin- 
"ciple by which the master ami owners are 
"held responsible lor every injury thai 
••miffht have been prevented by |,i,muu 
/ortsight or care." Now, it certainly was 
withm the reach of human foresight to dis- 
cover that bags of bread would probably bo 
injured by being placed within a short dis* 
tancc of a large quantity of loose coals ; and 
the owners and master are, therefore, clearly 
responsible for the damage which has arisen 
u "i ^^""' ^^ proper care on the part of 
the latter. Jthas, indeed, been suggested, 
that the consignor knew that the vessel was 
jmrtially laden with coals ; and that havin"- 
chosen, under this knowledge of the facts oT 
the case, to put his bags of bread on board 
her, he must be considered as having con- 
sented to take upon himself the risk of its 
bemg mjured by the coals. But, as no proof 
has been adduced on this point, I am not 
now called upon to determine on the validity 
of this argument. lam, however, strong v 
mclined to think, that the defence would 
not nave been materially aided b' . -oof of 
this allegation. Public policy ha „ J con- 
ceive, imposed upon the master and owners 
of ships, the duty of stowing their cargoes 
in such a manner that one part shall not be 
mjured by another; and if, after having re- 
ceived one article, another should be offered 
to them of such a nature that there was a 
chance of its being injured by the former, 
they would be bound to point out this cirl 
cumstance to the owner of the second arti- 
cle, and, at the same time, to decline takin*- 
It without protecting themselves against this 
risk by a special exception in the bill of la- 

Omg. It 18 thft hliainpeo #.f *U^ „. * .• 

the vessel, and not of the shij.pcr ef goods, 





rtieOwnrr* of lli« 
13rig Keltun. 





Th« Owntrn of tht 

Bfig Kkltun. 

lo make himself acqitnintpil wiili the pro- 
perties of the (JiHTerent ar icIvK in um fur ux 
their stowage i» to be n'p;iilat(Ml by thoi^e 
properties; and the mere know ledire, on the 
part of the shipper, that the cargo of a vessd 
conuisted of particular articlen, can never 
raise a presumption against him that he was 
aware that some of those articles might 
prove injurious to his goods; nor transfer^ 
from the master to him, the obligation of 
ascertaining what would be the probablo 
operation and effect of the one part of tho 
cargo upon another. For these reasons, I 
feel no hesitation in giving judgment for the 




Stjilember 23d. 

!•• lo an insolvent 
•ilatff had obtained 
poesestion, in vir*> 
tua of that charac- 
ter, of soine goods 
which had been 
sent to Iha ineol« 
Tent from England, 
Aid bad actually 
conveyed ihem lo 
the uliinata lermi* 
HUB of their des. 
linaiion, the Chief 
Juitiee held, that 
the vendor's riRht 
to s(oppa|ie,ia Iran* 
■itu, having been 
coni|iletely divest- 
ed by these acts, 
no subsequent pro- 
eeading on the part 
of the trustee 
could defeat the 
olaima of the gene* 
lal creditors of the 
fsiate to those 

The Trustees of the Insolvent Estate of 
Jah£s Fox and John Uyan. 

attending this case 

J flC circumstances 
are sufficiently explained in the following 
judgment: — 

Per Curiam* This case involves the 
question of the vendor's right to stop the 
goods, which form the subject of it, in their 
transit to the vendee ; and the only doubt 
which the Court has extM^rienced in the de- 
termination of it» arises entirely from the 
mystery in which the facts relating to it are 
enveloped. The loose manner in which bu- 
siness is often conducted in this country, 
and the consequent relaxation from the rules 
of evidence observed in England, frequently 
render it extremely difficult for this Court 
to acquire a correct knowledge o(/acls ; but 
the UttiSculty of doing so, resulting from these 
general causes, is, in this case, considerably 
increased by the particular conduct of some 
of the leading parties to this transaction, it 



villi tlir pro- 
I ill UH far uA 
led by those 
luiitrtNon tlic 
go of a vessel 
es, can never 
1 that he was 
rticlcs might 
nor transfer^ 
obligation of 
the probable 
ic part of the 
28e reasons, I 
^ment for the 

nt Estate of 

\ng this case 
Ihe following 

involves the 
It to stop the 
of it, in their 
e only doubt 
:ed in the de- 
ely from the 
Lting to it are 
in which bu- 
this country, 
from the rules 
id, frequently 
for this Courl 
oi facts ; but 
ing from these 
iduct of some 
ansae tion. it 


Is obvious, from their mode of proccrdiny, 
chat both the iiiMidvenl, /'o^.and hislnislee, 
Jiapivi, wire iiilluenced by some private 
viewH opposite to ihtir duty to the general 
creditors of the iiiHolvent; and that, in the 
prosecution of tlieir own interests, they have 
bad recourse to measures which have brought 
the rights of these creditors into jeopard'y ; 
for it is clear that, if Ilatfes had acted 
in the manner in which his character as 
irusUc recpiiied that he should have done, 
there never wuuld have been nn occasi«»n 
for luinging this action, i'rom the evidence 
of Fox, it seeum certain that it was his in- 
tJ'ntion to obtain, through the agency of 
JJai/es,a fraudulent possession of these goody. 
And, upon the failure of this plan, IJat/es, 
upon motives which do not distinctly ap- 
pear, but which, to say the least of them, 
are o^ien to strong suspicions, surrendered 
to the defendant, as agent 'to the vendee, 
the good.% whi<:h, as one of the trustees to 
tile insolvent estate, he was bound to hold 
for the general bentf't of the creditors. 
J hrough the veil which has thus been cast 
over this case, the Court has, however, been 
enabled to trace the following prominent 
features of it, from the testimony of Fox and 
Hayes, and from a few documents which 
were produced at the trial. 

Soon after Fox had been declared insol- 
vent by the Surrogate Court at Harbour 
Grace, a notice of this event, and of the ap- 
pointraent of trustees to his estate, was in- 
se.'-ted in the newspaper of that place ; and 
to this notice the name of Michael Hayes 
was subscribed, as one of the trustees. The 
trustees did not, however, take any active 
part m the settlement of the estate; but 
agreeably to a practice very common in this 
couiiify, iney devolved the onus of such 



TtutUHnI (hw In* 
l-'uxaoti Uyan. 








I* ♦! 



1824 settlement upon nn agent appointed by theiiii 

v.^lr!^ In this state of Fox's afiairs, two vessels ar- 
Tru.te.. of th. In. fived at St. John's, having on board certain 
fcolvcDi E.I8U of articles o! merchandise for him, which nan 
]b'oxMdllYAN. i^ggn shipped by Mr. James Gordon oi Man- 
chester, from whom Fox had been m the 
habit of ordering goods from the commence- 
ment of his business. When the last-men- 
tioned goods were ordered by Fox, he liad 
reason to suppose that the balance then duo 
by him to Gordon would have been ^\9»\^^- 
ted by a remittance of fish which he had 
just before made to Gordon ; but this hope 
was disappointed in consequence of the bad 
market for tish, which did not realize Uie 
prime cost. The goods shipped by Gotdon 
to Fox were always insured by the former; 
and Fox was charged with the premium 
thereon. If they were sent to Harbour 
Grace, they were consigned directly to i'oo;, 
but if the vessel they were shipped in was 
only bound to St John's, they were forward- 
ed to Foxs agent there. The goods in 
question were put on board a vessel bound 
to St. John's and Harbour Grace, and were 
consigned immediately to Fox^ On their 
arrival at St. John's, after the declaration of 
insolvency, Iw (being then in the posses- 
sion of the invoice and bill of lading; gave 
Hayes, the trustee, who was the master and 
owner of a small schooner engaged m the between Harbour Grace and 
St. John's, an order to receive them ; but 
the master of the vessel having been m- 
formed, previously to the delivery of tlm 
order, of the insolvency of Yox, refused to 
comply with it until the newspaper was 
shown him by Mayes, announcmg his ap- 
pointment as a trustee to the estate of Foj?; 
and then he sunered nmi lu iaa.e wi^ ^^ "' 
which were conveyed by Hayes to Harbour 


ledby Ibeitik 
i vessels ar- 
oarti certain 

which had 
•</o» of Man- 
been in the 
J commence- 
le last-men- 
^^ox, be liad 
ice tlien due 
leen liquida-. 
fhich be had 
)Ut this hope 
:e of the bad 

realize the 
d by Gordon 

the former; 
the premium 
to Harbour 
pped in was 
irere forward- 
he goods in 
(ressel bound 
ce, and were 
c. On their 
ieclaration of